soldier with rifle american civil warState Of The Union

The Government Spies On You

Do you use electronic or telephonic means to speak with your friends, relatives, or business connections outside the boundaries of the United States? If so, expect your government to be enjoying the conversation, too.


In 2008, your Congress gave your President "sweeping and virtually unregulated authority to monitor the international communications of law-abiding U.S. citizens and residents." (See, Amnesty International, et al. v. James R. Clapper Jr, Chief of National Security Agency, 638 F.3d 118, 121 (2011) 2nd Circuit Court of Appeals.) Amnesty International and a group of lawyers and journalists sued Mr. Clapper and his pals seeking damages for the intrusion of the Government in to their private and supposed confidential communications with persons abroad.

The Federal District Court granted the government's motion to dismiss on the ground that the plaintiffs lacked standing to complain of the Government's behavior, since none of them could show at the outset of the action that they had, in fact, been spied upon. The Court of Appeals overturned the District Court's decision on the reasonably intelligent ground that "standing may be based on a reasonable fear of future injury and costs incurred to avoid that injury."

Note: The law at issue was passed by Congress in 2008. It allows Mr. Clapper to apply to a secret court for a mass surveillance authorization by submitting a declaration attesting generally that he wishes to obtain foreign intelligence information from or with the assistance of your telephone provider.


Justice Alito, speaking for a five to four majority of the United States Supreme Court reversed the Second Circuit Court of Appeals, on the ground that, since the plaintiffs had not actually established that the Government had, in fact, spied upon them, they lacked standing to sue Mr. Clapper. Of course the reason the plaintiff had not established the fact of actual spying is because the same court refuses to allow plaintiffs generally to discover the spying through lawsuits against the telephone providers—AT & T; Verizon etc. Cute, isn't? (see, Clapper v. Amnesty International (2013) 2013 U.S. Lexis 1858).)

Justice Alito, dismissing the Court of Appeal's conclusion that it was objectively reasonable for plaintiffs to incur costs in the belief they were being spied upon, with a wave of his robed arm, had this to say: "The plaintiffs' argument rests upon the highly speculative fear that the Government will decide to target them and that their communications will be intercepted. . . . Simply put, plaintiffs can only speculate as to how Mr. Clapper will exercise his discretion in determining which communications to target."

To the demand of the plaintiffs that the Government state whether it is targeting them, Justice Alito wrote this: "It is plaintiffs' burden to prove their standing by pointing to specific facts, not the Government's burden to disprove standing by revealing details of its surveillance priorities. Moreover, this type of proceeding would allow a terrorist or his attorney to determine whether he is currently under U.S. surveillance simply by filing a lawsuit challenging the Government's surveillance program."

Note: You see it, don't you, the big maw of a hole in Alito's logic? "This type of proceeding would allow a terrorist. . . " In Alito's brain a "terrorist" is defined how? Mr. Clapper says the guy is a "terrorist? The President says he's a" terrorist?" What exactly, Justice Alito, in your mind, is a "terrorist" supposed to be. Obviously not a person actually convicted of a "terrorist" act, like murder, explosion, etc. So Mr. Clapper suspects, imagines, believes  you are communicating with a "terrorist;" Bingo, Justice Alito must be saying with that arrogant sneer of his. Maybe he mouths the word.


What Alito has done, here, is substitute the word "terrorist" for the word "target" which is what the Government does when it decides to listen in on your communications. The person you are communicating with, is a "target" not a "terrorist."


Justice Breyer, with Justices Ginsberg, Sotomayer, and Kagan concurring, wrote in dissent to Justice Alito's opinion:

"The plaintiffs' standing depends upon the likelihood that the Government will harm them by intercepting at least some of their private, foreign, telephone or email communications. In my view, this harm is not "speculative." Indeed it is as likely to take place as are most future events that common sense inference and ordinary knowledge of human nature tell us will happen."


Congress's law at issue allows the Government to "obtain [secret court] approval of its surveillance of electronic communications between places in the United States and targets in foreign territories. . . ." For example, plaintiff, Scott McKay, is a lawyer who represents Mr. Al-Hussayen, who was acquitted in 2004 on terrorism charges, that in communicating with his client he uses electronic means and that prior to 2008 the Government had intercepted some 10,000 telephone calls and 20,000 email communications involving Mr. Al-Hussayen (Beware the drone in the sky, Mr. Al-Hussayen.).



Now here comes the real and serious problem of the Bill of Rights that Justice Alito simply ignores. The Fourth Amendment states that you are to be free from "unreasonable searches" of your property and "unreasonable seizures" of your person, and for over one hundred years of Supreme Court history that means the Government must appear before a judge (even a secret one) and produce sufficient facts upon which the judge can find there is "probable cause" to think you have committed a "crime." Upon such a finding the judge may issue a "warrant" that authorizes the Government to tap your telephone, enter your residence, or arrest you. You, the arrestee or subject of the search or seizure, then seeks a lawyer to defend your freedom and the communications you have with your lawyer, as you explain yourself to her, are ordinarily entitled to absolute confidentiality, whether they occur in a jail cell, a courtroom conference room, or anywhere else. Not so, in the Orwellian world Justice Alito and his pals occupy. Justice Breyer explains:

"The plaintiffs have a strong motive to engage in, and the Government has a strong motive to listen to, conversations of the kind described. A lawyer representing a client normally seeks to learn the circumstances surrounding the crime of which the client is accused. At the same time the Government [wants to listen in] on such conversations. The Government's past behavior shows that it has sought, and hence will in all likelihood continue to seek, information about alleged (a word Alito deigned to use) terrorists through means that include surveillance of electronic communications."


So what's next for freedom in America? Congress will pass a law that requires all new residential construction to include cameras to be embedded in the wall of each room of the house, with mic attached. And for existing homes? AT & T or Verizon servicemen will install the devices as if it were simply a cable. After all, any one of us might harbor "terrorist" thoughts against the Government. Better to find this out in time to reeducate us before we act the thoughts out. (See the analogy to gun owners? Any one of them at any time might commit a terrorist act with it, so why shouldn't the Government keep watch over each of them 24/7?)

Joe Ryan