Tuesday\u2019s decision by the Supreme Court in Clapper vs Amnesty Int\u2019l reflects judicial formalism at its worst. The decision abandons fundamental rights and the courts\u2019 constitutional mandate, while placing government agencies above the law, so long as they commit their abuses in secret.<\/p>\n
Clapper 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.<\/p>\n
Every American should be gravely concerned, and anyone who still considers America \u201cthe land of the free\u201d should carefully reconsider their assumptions. Several elements of the decision are disturbing, especially when viewed in a broader context beyond the case itself.<\/p>\n
Most obviously disappointing is the result of the ruling, not only for the plaintiffs, but also anyone who uses the phone system or Internet.<\/p>\n
A scandal in plain sight<\/p>\n
The Clapper saga started with the Foreign Intelligence Surveillance Act, which was first passed in the 1970s to restrict domestic spying by government agencies. It was prompted by decades of abuses by the FBI, CIA, and other agencies that Congress investigated and found conducting \u201ca sophisticated vigilante operation aimed squarely at suppressing the legitimate exercise of First Amendment rights of speech and association,\u201d including a documented government campaign to \u201cneutralize\u201d Martin Luther King, Jr. and other civil rights leaders.<\/p>\n
In 2002, the Bush administration authorized the National Security Agency (the NSA) to begin a secret warrantless wiretapping program in clear violation of the FISA law. It remained secret, at one point prompting a dramatic intra-executive showdown and threats of a mass resignation by Justice Department officials under the Bush administration, until the New York Times exposed the program in late 2005.<\/p>\n