Privacy SOS

Today it’s spying, tomorrow indefinitely detaining or killing?

This guest blog was written by ACLUm intern Max Bauer

The Supreme Court's decision yesterday to punt on the issue of warrantless spying presents implications that will most likely apply far beyond surveillance law. As New York Times reporter Adam Liptak wrote: "[T]he ruling illustrated how hard it is to mount court challenges to a wide array of antiterrorism measures, including renditions of terrorism suspects to foreign countries and targeted killings using drones, in light of the combination of government secrecy and judicial doctrines limiting access to the courts." 

The Court's FISA decision in Amnesty v. Clapper may indeed have a ripple effect that could derail any case challenging the expansive authority the executive branch has claimed for itself in the War on Terror.

Why should we care if there's too much power centered in the executive? What James Madison wrote hundreds of years ago applies perfectly today: "It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm." John Jay warned explicitly about centralized war powers: "It is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting anything by it; nay, absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal." Jay's remarks pertained to wars with finite temporal and spacial boundaries. We should be even more wary of tossing caution to the wind and undermining the rule of law when the wars we fight are borderless and could last for decades. 

Glenn Greenwald succinctly described the current government's approach concerning executive power and the rule of law during "wartime": "With perfect Kafkaesque reasoning, the Obama DOJ says that (1) who we spy on is a total secret, and therefore (2) nobody has the right to obtain a judicial ruling as to whether what we are doing is legal or constitutional." The Court's majority apparently saw nothing wrong with this logic.

The ripple effect of Amnesty v. Clapper

So what is the potential for a ripple of effect after Clapper? Firstly, the ruling may be a suggestion of what's to come from legal challenges to the NDAA provision allowing the executive branch to indefinitely detain American citizens. Relying on the appeals court decision in the FISA challenge, a federal court granted standing to those plaintiffs and struck down the detention provision of the law. After the Obama Administration appealed the ruling, the appeals court put a freeze on its injunction. The Clapper decision does not bode well for the resolution of that NDAA case.

Ominously, another executive branch power that may be affected by the Clapper ruling is the targeted killing program. Even if Congress provides some measure of judicial oversight by creating a court to oversee targeted killings, modeled after the secretive system to oversee FISA, it will be difficult if not impossible for anyone to bring a constitutional challenge to any such court or any of its decisions. Clapper all but ensures it.

We are therefore facing the possibility that the highest court in the land will defer to the executive on matters pertaining not only to privacy, but also to due process and the right to challenge evidence against you before the government marks you for assassination.

And this decision comes from an overwhelmingly conservative court. What's particularly ironic about the legal standard the Supreme Court laid down in Clapper is that the five most conservatives justices have shielded the President from possibly the most expansive, invasive, Orwellian government program in history. A Washington Post report noted the government collects 1.7 billion emails a day — big government in the extreme. Domestic homeland security has become a $1 trillion industry for a threat that government statistics show barely exists.

The standing doctrine, meanwhile, continues to devolve into a mechanism of avoidance deployed to shirk making decisions about politically sensitive subjects.

As Justice Louis Brandeis has written, "Sunlight is said to be the best of disinfectants." But tragically, this Supreme Court apparently seems to think the executive branch should be left to its own devices in the shadows. This week it's FISA surveillance; tomorrow it may be questions of life and death. 

© 2021 ACLU of Massachusetts.