Supreme Court Standoff Next? ACLU Sues Obama Over Constitutionality Of NSA Surveillance

Tyler Durden's picture

If the constitutional scholar was hoping he would quietly avoid a major showdown over the constitutionality of the biggest spying scandal since Nixon (whether legal or not remains to be determined) and which would likely have led to an early POTUS retirement if current president was republican, the ACLU just slammed the door shut on the possibility. Moments ago, the American Civil Liberties Union filed a lawsuit against the Obama administration over its "dragnet" collection of logs of domestic phone calls, contending that the once-secret program is illegal and asking a judge to both stop it and order the records purged. And, as the NYT reports, "the lawsuit, filed in New York, could set up an eventual Supreme Court test." Only once that happens it will be too bad that InTrade is no longer available, to take the other side of a trade that believes the SCOTUS will for once do the right thing and preserve the constitution when everyone knows the decision to formally enact a Big Brother state will pass along political party lines and America will officially become the country that for 5 decades, at least superficially, it was waging "cold war" against.

From NYT: 

The program began as part of the Bush administration’s post-9/11 programs of surveillance without warrants, and, it is now known, it has continued since 2006 with the blessing of a national security court, which has ruled in still-secret legal opinions that such bulk surveillance was authorized by a section of the Patriot Act that allows the F.B.I. to obtain “business records” if they are relevant to a counterterrorism investigation.

 

Congress never openly voted to authorize the N.S.A. to collect logs of hundreds of millions of domestic phone calls, but the administration notes that some lawmakers were briefed on the program. Some members of Congress have backed it as a useful counterterrorism tool, while others have denounced it.

 

“The administration claims authority to sift through details of our private lives because the Patriot Act says that it can,” Representative Jim Sensenbrenner, Republican of Wisconsin, wrote in a letter to Attorney General Eric H. Holder Jr. on Sunday. “I disagree. I authored the Patriot Act, and this is an abuse of that law.”

 

Over the weekend, in hope of preventing a backlash, James R. Clapper, the director of national intelligence, also disclosed details about privacy protections built into the program. Among them, officials may access the database only if they can meet a legal justification — “reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization.” To deter abuse, queries are audited under the oversight of judges on a national security court.

 

Timothy Edgar, who recently left the government after serving as a privacy and civil liberties official on intelligence matters in both the Bush and Obama administrations and who worked on building safeguards into the phone log program, said the notion underlying the limits was that people’s privacy is not invaded by having their records collected and stored in government computers, but only when a human extracts and examines them.

 

“When you have important reasons why that collection needs to take place on a scale that is much larger than case-by-case or individual obtaining of records, then one of the ways you try to deal with the privacy issue is you think carefully about having a set of safeguards that basically say ‘O.K., yes, this has major privacy implications, but what can we do on the back end to address those?'” he said.

 

Still, even with such restrictions, privacy advocates say the mere existence of the database will inevitably erode the sense of living in a free society: from now on, whenever Americans pick up a phone, before dialing they now face the consideration of whether they want the record of that call to go into the government’s permanent files.

Living in a what society?

Supporters of the program privately say the database’s existence is about more than convenience and speed. They say it can also help in searching for networks of terrorists who may be taking steps to shield their communications with one another, for instance by using different phone lines; if calls are going to and from a different number at the same address or cellphone towers as the number that is known to be suspicious, for example, having the comprehensive database may be helpful in a way that subpoenas for specific numbers cannot match.

 

It remains unclear, however, whether there have been any real-world instances in which a terrorist network that tried to evade detection was identified in that way, and so the existence of the database prevented an attack that otherwise would have occurred, or whether that advantage is to date only theoretical. A 1979 ruling over a small-scale collection of calling “metadata,” Smith v. Maryland, held that such records were not protected by the Fourth Amendment since people have revealed such information to phone companies and so have no reasonable expectation of privacy. However, in a 2012 case involving GPS trackers placed by the police on cars, the Supreme Court suggested that the automated collection of people’s public movements may raise Fourth Amendment privacy issues in a way that nonbulk surveillance does not.

 

A 1979 ruling over a small-scale collection of calling “metadata,” Smith v. Maryland, held that such records were not protected by the Fourth Amendment since people have revealed such information to phone companies and so have no reasonable expectation of privacy. However, in a 2012 case involving GPS trackers placed by the police on cars, the Supreme Court suggested that the automated collection of people’s public movements may raise Fourth Amendment privacy issues in a way that nonbulk surveillance does not.

Can we just cut to the chase and take this straight to a Supreme Court showdown so that just like in the case of Obamacare, it can be voted through along political party lines, and the final schism of an already broken society, where one half no longer demands any right can be put in the books.