The Supreme Court has just given the government (and the NSA’s defenders) a little more breathing room on the issue of the legality of the agency’s surveillance programs.
In a case very similar to a lawsuit brought by the American Civil Liberties Union (ACLU) against warrantless surveillance made “legal” by the FISA Amendments Act (FAA) of 2008, which the Supreme Court declined to grant “standing” in February 2013, the Center for Constitutional Rights (CCR) announced the Court had rejected their lawsuit against Bush-era warrantless surveillance.
“The Supreme Court’s refusal to review this case guarantees that the federal courts will never address a fundamental question: Was the warrantless surveillance program the NSA carried out on President Bush’s orders legal? The Court’s decision also guarantees that the Obama administration, which has for the last five years refused to take any position on that question, will now never have to answer either,” CCR declared.
This refusal will give those who claim the programs are “legal” another notch on the rhetoric belt, as if not discussing the legality (or illegality) of the program was the equivalent to being found legal by the highest court in the land. If the courts are unwilling to entertain surveillance-related cases, either by refusal to grant standing or refusal to hear the case at all, the defenders can continue to claim the programs are legal.
CCR has what would seem to be a pretty solid legal stake in challenging the legality of these programs, especially considering the recent revelations that the NSA signed off on the collection of privileged attorney-client communications. CCR is representing “hundreds” of Guantanamo Bay detainees, charged as “enemy combatants” and held indefinitely, each of which could be “legally” surveilled as they hold supposedly privileged conversations with their legal representation.
Lawyers have refused to take terrorism cases because they refuse to have their privacy violated by the government, and attorney have also warned their own clients that they should “self-censor” and assume they are being spied upon by the government when they communicate anything.
This is not some “speculative” issue. On February 20, the American Bar Association, which has around 400,000 members, expressed concerns about recent allegations that the “confidential communications” of American lawyers with “overseas clients” had been violated.
As the article points out, this isn’t speculative. In addition to the above-mentioned leak, other evidence has been uncovered that points to the government listening in on privileged conversations. Nicolas Niarchos of The Nation reviewed classified documents related to terrorist suspect Adis Medunjanin. Medunjanin made 42 phone calls to his legal rep from mid-2009 to 2010. In the classified documents, Niarchos found a CD of these 42 phone calls.
Even if the NSA has no clear directive warning it away from attorney-client communications, it certainly should still be required to conform with the protections of the Constitution. Collecting evidence by listening in on conversations presumed to be privileged further subverts due process by giving the government access to info it normally (via any other agency) wouldn’t have access to. You know, I don’t want the terrorists to “win” either, but I’d rather not sacrifice my rights on the altar of “security” to achieve that goal.
The Supreme Court’s disinterest in this case will only further insulate the government against the consequences of its own behavior.
