On October 29, the U.S. Supreme Court will hear oral arguments in Clapper v. Amnesty International. The Court will then decide whether Americans have standing to challenge a federal statute that permits the government to intercept their communications without suspicion of any crime, without a warrant, and with virtually no meaningful judicial oversight of any sort. Our law firm had the privilege of filing an amicus curiae brief in the Clapper case on behalf of Gun Owners Foundation, Gun Owners of America, Inc., U.S. Justice Foundation, Downsize DC Foundation, DownsizeDC.org, and the Conservative Legal Defense and Education Fund.
The case involves the 2008 FISA Amendments Act (“FAA”), which broadened the 1978 Foreign Intelligence Surveillance Act (“FISA”). For years, FISA has permitted the gathering of “foreign intelligence” outside the traditional legal safeguards associated with criminal law enforcement. Even before the 2008 amendments, FISA has allowed wiretaps so long as there was probable cause to believe that the target of the surveillance was a foreign power, or agent thereof. And, so long as the “target” is legitimate, all “incidental” information that is picked up has been fair game, even if that includes the surveillance of “U.S. persons” (a term which includes U.S. citizens) not suspected of any wrongdoing.
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Although FISA is purportedly designed to gather foreign intelligence, seized communications have been used in numerous criminal investigations and trials, even though FISA is not subject (i) to the same “particularity requirements” as traditional warrants (the who, what, where, and when), or (ii) to any customary oversight by an independent court. The only judicial checkpoint is the special Foreign Intelligence Surveillance Court (“FISC”), which has proven highly compliant with the wishes of the intelligence community.
Seeking still more unfettered authority, the executive branch urged Congress to pass FAA, which eliminates even the need for individual warrant applications. The FAA removes judicial oversight, as FISC is stripped of any substantive role in determining probable cause. Its only role is to make sure “that the government has made the proper certifications” — i.e., that the right boxes have been checked. Further, under FAA, there is no “ongoing judicial review” of approved surveillance. Instead, federal executive officials police themselves.
As the Clapper plaintiffs in the U.S. Court of Appeals for the Second Circuit put it, the government need only issue an “acquisition order” to capture “[a]ll telephone and e-mail communications to and from countries of foreign policy interest….” The government never challenged that characterization of its power. Who knows — that may be exactly what they have done, and if for one country, why not for every country.
The secret nature of FAA-authorized surveillance enabled the government’s remarkable claim that, because the plaintiffs could not demonstrate with certainty that they had been the subject of surveillance, they had no standing to bring suit to defend their Constitutional rights. If the government wins on this point, the American people will be denied all access to any judicial remedy for clandestine violations of their Constitutional rights.
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FAA is not the first such assertion of the power of unlimited, unsupervised, warrantless surveillance of Americans by the federal government. In January of this year, the Supreme Court decided U.S. v. Antoine Jones, rejecting the claim by federal agents that they could install and use a GPS tracking device on a person’s automobile without a warrant, probable cause, or even mere suspicion. The court ruled that, by surreptitiously placing a GPS tracking device on Jones’ Jeep without a warrant, the government violated the Fourth Amendment by trespassing on Jones’ property. This ruling, however, has not deterred the government from tracking our movements without a warrant by means of the GPS chip that the federal government has required to be placed on our cell phones. The government claims that there is no trespass, and no reasonable expectation of privacy, so the Fourth Amendment does not even apply.
Government-installed traffic cameras, security cameras, red light cameras, and plate-scan cameras already monitor us on the streets and in other public places. Additionally, federal, state and local governments are already publically discussing their plans to use increasing numbers of unmanned aerial drones to follow us even on private property. Government agents already interfere with our ability to travel, without, of course, any warrant or suspicion of wrongdoing. TSA agents inspect our toddlers’ toys and grandparents’ diapers at airports, rail stations, and bus terminals. Also, local law enforcement conducts random “sweeps” and searches at public transit locations, like subway stations, and stops vehicles at checkpoints under the pretense of looking for drunk drivers, inspecting drivers’ licenses, or conducting the increasingly popular “routine safety check.”
Amidst this vast web of random, suspicionless, warrantless searches and seizures, not only is our privacy at risk, but just as important, our property. Property rights are meaningless if they do not include the right to exclude others from one’s property (especially the government). The Supreme Court correctly ruled that, since Antoine Jones had a property right in his car, the government was prohibited from trespassing on it to install a GPS tracking device. Likewise, Americans should have property rights in the location data emitted by their cellular phones and the content of their phone calls and emails along with, of course, their tangible “persons, houses, papers and effects.” And yet, all of these rights are being eroded when balanced against the government’s purported interests of “public safety” and “crime detection/prevention.”
Such intrusions may be unprecedented in the United States, but they have not been elsewhere. United States Supreme Court Justice Robert Jackson, a close friend and confidant of President Franklin Roosevelt, served as the chief prosecutor at the Nuremberg Trials. While in Germany, he was able to learn first hand how the German people had lost their freedoms. Upon his return, he became a champion of Fourth Amendment rights.
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Justice Jackson’s Executive Trial Counsel at Nuremberg, Whitney Harris, discussed part of their shared experience in Germany in his book Tyranny on Trial, explaining that, as with the U.S. Constitution, “[t]he Weimar Constitution contained positive guarantees of basic civil rights. Chief among them were personal freedom … inviolability of the home [and] secrecy of letters and other communications….”
However, the Weimar Constitution also contained an extraordinary provision, Article 48, “under which the Reich President was authorized to suspend basic civil rights ‘if the public safety and order in the German Reich are considerably disturbed or endangered….’” In order to lay the predicate for this suspension of rights, it is generally believed that the Nazis themselves set fire to the Reichstag, which was followed the next day by a Presidential edict that “[personal freedom … inviolability of the home [and] secrecy of letters and other communications] are suspended until further notice [and] violations of the privacy of postal, telegraphic, and telephonic communications, and warrants for house searches, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits unless otherwise prescribed.”
Having thus suspended the property rights of the German people, and attributing all the nation’s problems to Communist terrorists, the Nazis began a campaign of random searches and seizures in order to flush out “Communist literature and illegal weapons.” Constitutional lawyer and Second Amendment scholar Steven Halbrook explains the process in his article, Nazi Firearms Law and the Disarming of the German Jews. Two days after Hitler took power, the Berlin police, in response to a shooting of a Nazi official, “closed off the street to all traffic while at the same time criminal detectives conducted extensive raids in the houses. Each individual apartment was searched for weapons.” A little over two months later, “[h]aving disarmed and mopped up the ‘Communists” with such raids … the Nazis … turned their attention more toward the Jews” and in one case “[a] large force of police assisted by Nazi auxiliaries raided a Jewish quarter in Eastern Berlin, searching everywhere for weapons and papers.” In order to further “enforce this [campaign of] repression, telephones were tapped and informants lingered in cafes.”
Upon his return to the high court, Justice Jackson wrote a ringing dissent in Brinegar v. United States, warning of the dangers associated with the erosion of property rights. Ranking Fourth Amendment rights as being of the highest order, Justice Jackson wrote that “[a]mong deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.”
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Just because the United States Constitution has no provision allowing a President to suspend the Fourth Amendment and other civil liberties does not mean that something akin to what happened in Nazi Germany cannot happen here. Congress has already deferred to the arbitrary exercise of unenumerated Presidential powers based on the wartime rationale of necessity that could lead to the same dark and dangerous place. Too many Americans think that it “can’t happen here.” No doubt, many Germans felt the same way under the Weimar Republic. But Justice Jackson’s warnings must not go unheeded.
The U.S. Supreme Court has already taken a first step on the road back to liberty by its ruling in Jones that the Fourth Amendment protects the right of the American people to possess their private property to the exclusion of the federal government. The next step would be for the Court to recognize that the People have the same property right to exclude the government from seizing their private communications, however transmitted. In order for the Court to do that, it must recognize that the lawyer and journalist plaintiffs in Clapper have standing to seek judicial protection of their proprietary interests in their private communications with their clients and their information sources.
If the Supreme Court denies the Clapper plaintiffs legal standing, then there will be no judicial check upon the federal government’s voracious appetite to devour the Fourth Amendment protection of our property interests in our “persons, houses, papers, and effects.” If, on the other hand, the Court grants legal standing, then the Clapper plaintiffs will have a singular opportunity to urge the justices to heed Justice Jackson’s warning that a government possessing the uncontrolled power to search and seize the people’s property “cows” the people, “crushes” the individual spirit, and “terrorizes” even the most stout-hearted amongst us.
Bill Olson has practiced law in the Washington, DC area for 36 years, and served in three positions in the Reagan administration. Herb Titus taught constitutional law for 26 years, concluding his academic career as founding dean of Regent Law School. They now practice constitutional law together, defending against government excess, at William J. Olson, P.C. They can be reached at [email protected] or followed on Twitter @Olsonlaw.
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