Saving What’s Left of the Constitution

Hmm. Somehow I missed this one. The American Civil Liberties Union lawsuit against the US government under George W. Bush regarding surveillance of phone calls made and emails sent overseas by US citizens was reinstated last month by an appeals court.

The suit began because of the revelation that the National Security Agency had been ordered by Bush to engage in warrantless eavesdropping on the telephone calls of Americans overseas. Bush claimed an ‘inherent right’ of the executive to spy on US citizens in this way.

The ACLU launched the class action suit on behalf of activists who might plausibly expect to have been spied on as part of the Bush program. It was initially turned back by a US district court over questions of standing, insofar as the parties to the suit, including journalist Christopher Hitchens, only had a reasonable suspicion that they might have been subject to eavesdropping, not actual proof.

Judge Gerard Lynch, writing for a 3-judge Federal appeals panel, accepted the argument that the groups and individuals potentially targeted had had to incur extra expenses and trouble to avoid being the object of such illegal wiretaps, since Bush’s policy made them plausible targets. Lynch wrote:

“The government overstates the standard for determining when a present injury linked to a contingent future injury can support standing… The plaintiffs have demonstrated that they suffered present injuries in fact – concrete economic and professional harms – that are fairly traceable to the FAA and redressable by a favorable judgment.”

The Fourth Amendment to the Constitution states,

‘ The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ‘

Although the Fourth Amendment does not explicitly mention communications, from early in the history of the Republic, courts and government practice recognized the right to privacy in land mail handled by the US post office, and this principle was explicitly extended to telephone calls in later rulings.

Although Congress in 2008 tried to address the issue of warrantless wiretapping and surveillance of email by putting the issue in the hands of courts functioning under the Federal Intelligence Surveillance Act, Bush continued to insist that he had the inherent right to listen in on your phone calls and read your email without a warrant. The secrecy of the FISA courts and the lack of oversight over them has alarmed civil libertarians.

Bush administration officials repeatedly argued that there had been no known abuses in the surveillance – that is, it was only targeting individuals who were in contact with persons of interest abroad. But the secrecy of the program means that we don’t have any way of knowing about abuses, and they may have been legion.

I am relieved that Judge Lynch and his colleagues reinstated the suit, and a little surprised, as well. The courts, prosecutors and even the present attorney general have let the Bush administration get away with so many crimes that I had begun to suspect that that our system had just become too corrupt and/or politicized to protect basic American freedoms.

Posted in Uncategorized | 6 Responses | Print |

6 Responses

  1. The baby has already been thrown out with the bathwater.

  2. The beginning of the end of the Constitution started in 1913 with the 16th Amendment and the Federal Reserve Act. It’s been a slow, steady, coordinated downhill toward Fascism ever since. It’s like that strategy for catching wild pigs where you place some bait and every night you put a new part of a fence around the bait until after many night you’ve circled the bait, created a gate, and on that last night you leave the gait open and the pigs come for the bait yet again, and you simply tap the gate closed. Voila, slavery once again.

  3. There is a tendency, in USA’s courts, to limit constitutional limits on government action in times when people (and courts) are scared, and then to return to (or merely toward) the earlier limits after the emergency is over.

    However, where, as with GWB etc., the “scare” is endless (war to the end of time), the constitution has a particularly hard time.

    It’s time for people to get up on their hind legs and tell the government that we prize our liberties and are (therefore) willing to take (some) chances with enemies, terrorists, etc. Otherwise “The baby has already been thrown out with the bathwater.”

    Same deal with the government’s use of “state secret privilege” to decline to provide evidence to non-state-parties (and thereby make them lose their cases!).

  4. perhaps a study of US history would assure you Professor Cole that, as Belmont points out, there’s nothing unusual going on. technological capabilities aside, it’s the same old abuses,

  5. Dear Juan Cole (and a dear, for doing all you do):
    I hope you receive this comment. I am no longer able to comment or respond on AlterNet, after posting often re. loss of many rights, rule of law, etc. I’ve reported on refusal of Obama’s DOJ to investigate longtime, blatant brutality/torture of peaceful peace demonstators here in Colo. Spgs., the super fusion center of the country’s over seventy fusion centers (Google: Colorado Springs Independent, Jan. 21, 2011, “No Peace or Justice”).

    However, recently the warning icons began flashing on my computer on four different sites (AlterNet, Reader Supported News, Care2, and This was approx. ten days after posting the ‘Best’ comment (re. election manipulation) on AlterNet’s story, “The 8 Worst Governors”, then on April 12, immediately following my return from the national conference of Media Matters/Free Press, I posted a comment on an AlterNet story also dealing with mass election fraud in the Wisconsin Supreme Court election, wherein I quoted printed materials from the Election Reform Alliance, a national organization participating in the conference I’d just attended.

    My point: Juan, prepare for the worst as you hope and work for the best. Freedom of speech on the internet is beginning to be quashed. No big suprise, with warrantless tapping, surveillence, infiltration now being the m.o. of our Bushwhaced and Kochsucked, anything but democratic U.S. of (greed and power) A.(ddiction). Crucifixion is coming our way, as we fight, Wisconsin style, to… UDNO THE COUP

    You can Google me (Rita Walpole Ague) for more info. and verification of my justice and peace activism, no easy job insofar as we proponents are now tagged ‘terrorists’ by the govt. operative enforcers (now over 80,000, according to Pulitizer winner Dana Priest) of our villainaire rulers.

    Good luck, and God bless and keep you, dear man. Rita A.

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