March 2013, Vol. 12 No. 03
View this newsletter as a webpage: http://www.bordc.org/newsletter/2013/03/
DC Circuit Court forces CIA to at least acknowledge documents about drones
On March 15, the US Court of Appeals for the DC Circuit ruled that the CIA must respond to a FOIA request by the ACLU seeking information about the targeted killing program using drone aircraft. While the decision does not require the actual disclosure of the documents, which the lawsuit will now move on to address, it does represent a rare example of the federal judiciary standing up to government secrecy and asserting an independent check and balance.
The CIA had denied the very existence of the drone program, which satisfied the District Court. In his opinion for the appellate court, however, Chief Judge Merrick Garland argued that:
[G]iven…statements by the [CIA] Director, the President, and the President’s counterterrorism advisor, the Agency’s declaration that “no authorized CIA or Executive Branch official has disclosed whether or not the CIA . . . has an interest in drone strikes,” is at this point neither logical nor plausible….
In this case, the CIA has asked the courts to stretch [their deference] too far — to give their imprimatur to a fiction of deniability that no reasonable person would regard as plausible.”
While Judge Garland’s opinion reflects a common sense principle that should hardly surprise anyone expecting independent jurisprudence, it stands in sharp distinction to the deferential attitude towards executive secrecy taken by other courts, including the US Supreme Court, whose decision in the Clapper case reflected a contrary complacency to claims of government secrecy.
National Security Letters held unconstitutional
On March 15, a federal judge in California struck down National Security Letters (NSLs) as unconstitutional violations of free speech. US District Judge Susan Illston ordered the Justice Department and FBI to stop issuing NSLs, which are unilateral demands for private information unsupported by a judicial warrant, and also ordered them to stop enforcing gag orders attached to NSLs in other cases.
According to Cindy Cohn, Legal Director of the Electronic Frontier Foundation:
The First Amendment prevents the government from silencing people and stopping them from criticizing its use of executive surveillance power. The NSL statute has long been a concern of many Americans, and this small step should help restore balance between liberty and security.
While an important decision reflecting a rare reflection of judicial independence, Judge Illston stayed her order to give the government a chance to appeal to the Ninth Circuit Court of Appeals, where the fate of her ruling remains uncertain.
Nearly ten years ago, a court first struck down an NSL gag order as unconstitutional after a challenge brought by Nick Merrill, winner of BORDC’s March 2012 Patriot award. While the government continues to use NSLs, his challenge enabled subsequent recipients to at least contact counsel.
Due to the gag order accompanying its NSL, the recipient of the NSL resisted by EFF remains unconfirmed. Wired magazine, however, speculates that it may be Credo Mobile, which generously awarded BORDC a substantial grant earlier this year based on your votes in 2012.
US Supreme Court places NSA above the law in Clapper v. Amnesty
On February 26, 2013, the US Supreme Court ruled 5-4 to allow warrantless wiretapping to continue. The controversial decision places the National Security Agency (NSA) above the law and insulates it from judicial review.
The Foreign Intelligence Surveillance Act (FISA) was first passed in the 1970s to restrict domestic surveillance by government agencies. Ignoring its legal limits, the Bush administration authorized the NSA to begin a secret wiretapping program that was not exposed until 2005, when New York Times reporters risked prosecution to publicize it.
Three years after the NSA’s crimes were exposed, Congress amended FISA to legalize the NSA’s abuses and allow it to spy not only on foreign powers, but on Americans as well. Congress also allowed the NSA to conduct warrantless wiretapping without identifying specific targets. The NSA now performs “dragnet surveillance” of nearly 2 billion emails and phone calls each day.
In Clapper, a group of activists, journalists, and lawyers who frequently contact international clients and sources sued the NSA for the probable invasion of their privacy without warrants. The Supreme Court denied the plaintiffs the right to sue, perversely arguing that because they could not prove that the NSA had specifically targeted them, they were ineligible to bring suit.
Of course, finding evidence of NSA surveillance is effectively impossible, as the NSA has denied access to even to Congress about merely its policies, let alone operational details, and has ironically refused to answer senators’ questions while claiming to protect the privacy of monitored Americans. Although NSA whistleblowers claim that all Americans are being monitored, no one has any way of proving it, which means the Clapper decision could insulate the NSA from any accountability despite committing vast—and ongoing—constitutional violations.
The majority opinion essentially “buries the Court’s head in the sand” and ignores the implications of its decision on the ground. With Congress having recently extended the 2008 FISA amendments to allow the NSA to continue tapping the phone system and Internet for another five years, there are no meaningful checks and balances on the NSA’s activities.
According to BORDC’s Shahid Buttar:
The Clapper decision is a constitutional travesty of the highest order, reflecting the erosion of privacy, judicial independence, and constitutional government all at once…
By allowing executive secrecy to insulate violations from review, five Justices of the Supreme Court have effectively killed what shreds once remained of the Fourth Amendment.
Every American should be gravely concerned, and anyone who still considers America “the land of the free” should carefully reconsider their assumptions…
Congress must reverse its premature decision to extend the Foreign Intelligence Surveillance Act (FISA) to provide the check on executive abuses that the Court has abdicated.
Bill of Rights Defense Committee
www.bordc.org • firstname.lastname@example.org • (413) 582-0110 • Fax: (413) 582-0116