The Fourth Amendment Doesn’t Apply If Your Rights Are Violated Secretly

Yesterday, the Supreme Court held that a group of journalists, lawyers, and human rights organizations did not have the standing to challenge FISA on Fourth Amendment grounds, since they could not prove that what they alleged to be a violation of their rights was “certainly impending,” something they of course could not prove because the targets of the program are secret. The opinion was written by reasonable, moderate, thinking persons’s authoritarian Sam Alito, who despite his implacable hostility to civil liberties claims is bound to turn into Harry Blackmun soon. I don’t agree with the drive by the Court’s Republicans to deny standing (for plaintiffs whose claims they don’t like on substantive grounds) in any case, but to argue that the very secrecy of the government’s warrantless wiretapping program should insulate it from constitutional challenge is some sort of new low for the Roberts Court.

See also Rochelle Bobroff and Adam Bonin. Greenwald is also correct to point out that the Court endorsed the Obama administration’s position here, although again 1)the opening assumption that the Obama administration “convinced” the Court’s five Republican appointees to adopt long-standing reactionary views on standing and (de facto) the Fourth Amendment is implausible in the extreme, 2)the biggest impact Obama has on this case is through his Supreme Court nominees, both of whom voted correctly despite the administration’s endorsement of the authoritarian position.

58 comments on this post.
  1. Joseph Slater:

    That’s some catch. . . .

  2. Incontinentia Buttocks:

    So Greenwald is wrong that the Obama Administration created this new level of authoritarianism, when in fact it merely explicitly supports it (though it also threatens to undermine it through its choice of SCOTUS Justices).

    In short, the Lesser Evil is evil, though less so than the Greater Evil. And GG is wrong, but primarily because he fails to draw this distinction.

    So it goes.

  3. Brandon:

    The best there is

  4. actor212:

    The opinion was written by reasonable, moderate, thinking persons’s authoritarian Sam Alito

    Count on Lemieux to bring the snark and make it sound hoity-toity.

  5. c u n d gulag:

    +1

  6. david mizner:

    Well this was a decision on standing. There’s good reason to believe Kagan would’ve decided the wrong way in the end given her record on the 4th Amendment. I think Kagan was put there largely to secure an authoritarian majority that can protect the executive’s terror war power grab.

  7. brewmn:

    Well, if you equate “appointing justices whose rulings have the force of law and will use that power to invalidate executive overreach on 4th amendment grounds” with “appointing justices whose rulings have the force of law and will enshrine executive overreach on 4th amendment grounds permanently in our consitutional jurisprudence,” then you and Glenn have a point.

  8. Njorl:

    So the court ruled that what you don’t know can’t hurt you.

  9. Njorl:

    I thought it was an advertisement and glossed right over it.

  10. Charlie Sweatpants:

    “There’s good reason to believe Kagan would’ve decided the wrong way in the end given her record on the 4th Amendment.”

    Maybe, maybe not. At least all four of the non-nutbar justices went the right way this time. If one or both of the Clinton nominees hangs it up while Obama’s in office, it’ll be crucial whether he nominates someone who’s willing to sign off on the Terror War. The 4th has been in deep shit for a long time, but a “liberal” justice who’s okay with carte blanche for surveillance, wiretapping, etcetera would kill it for a generation at least.

  11. david mizner:

    Well I was half-wrong. I thought she’d joined with the wingnuts in upholding jail strip searches; in fact, she’d joined with the wingnuts in weakening Miranda (5th, not the 4th amendment.) This jibes with Holder’s belief that Miranda should, uh, modified in terrorism cases.

  12. burnspbesq:

    Yes, the FISA Amendments Act was, and is, an abomination.

    The correct approach is to work for its repeal.

    This case was correctly decided. Period, full stop. Article III says what it says. Don’t like it? TFB.

  13. Incontinentia Buttocks:

    As I said, Greenwald is wrong about this. But I continue to think that the Obama Administration’s arguments for authoritarianism to the Court are nonetheless more consequential (and disturbing) than Green Greenwald’s wrongness about their relative extent.

  14. Derelict:

    Bin Laden and his crew sought to destroy America. And thanks to the unholy combination of bedwetting authoritarians and a citizenry unable to focus on any actual rights other than the First and Second Amendments (and they’re not really sure about the First), the terrorists have won. Other than the right to own virtually any gun you can afford and the right to be a member of any religion, we’ve given up all the others. And we’ve done so quite eagerly, as though those rights were simply too much to bear.

  15. Incontinentia Buttocks:

    Of course, Obama opposed the FISA Amendments Act as a presidential candidate in the spring of 2008. Unfortunately, he later voter for it as a Senator that summer.

  16. jazzbumpa:

    Exactly how do you get from Article III to “This case was correctly decided?”

    JzB

  17. jazzbumpa:

    Who ever said we have the right to bear rights?

    JzB

  18. Scott Lemieux:

    Well this was a decision on standing.

    If you think that standing doctrine is somehow divorced from the substantive preferences of judges, I have some assertions that Sam Alito will be the next Earl Warren to sell you.

    There’s good reason to believe Kagan would’ve decided the wrong way in the end given her record on the 4th Amendment.

    Based on her actual jurisprudence, there is no reason whatsoever to believe this.

  19. Incontinentia Buttocks:

    (Just to be clear, I’m only agreeing with bunspbesq about the awfulness of the FISA Amendments Act, NOT the rightness of this decision.)

  20. R. Porrofatto:

    I’m sure the decision would be the same even if the plaintiffs were, say, the Gun Owners of America and various gun rights journalists and lawyers protesting laws that allowed the government to potentially eavesdrop on private gun sales, while subjecting potential gun owners to arbitrary placement on a secret No Buy list. Yes, I’m sure of it.

  21. Scott Lemieux:

    Article III says what it says.

    Indeed it does. And absolutely nothing in it requires the Court to determine that a claim brought by plaintiffs facing a perfectly plausible threat of concrete injury doesn’t constitute a “case” or “controversy.” To equate Alito’s extremely contestable (and, as applied in this case, ludicrously illogical) subconstitutional rule with the text of Article III is absurd.

  22. david mizner:

    Well, you’re the expert. There were legit concerns raised when she nominated about her views on executive power, and as far as I can tell, she doesn’t have a full enough record on relevant issues to alleviate those concerns. Perhaps you could enlighten me as to why you think she would take the pro-civil liberties side in Terror War-related cases.

  23. socraticsilence:

    Glenn would have point if he could point to a President besides maybe Carter in the last oh history of the Republic who didn’t have an adversarial approach to civil liberties.

    I’m not saying he’s wrong in this case, just that given that all his analysis springs forth from his “Obama iz teh debil!11!!” baseline it tends to be of very limited overall value and is often actually counterproductive.

  24. socraticsilence:

    Ugh, it is obviously a catch-22 situation but at the same time you might have point- the court can’t rule on hypothetical standing, and standing or the lack thereof is a massive element to any claim.

  25. david mizner:

    I just read Dahlia Lithwick’s review of her record. Didn’t clarify things at all but it came out in 2011.

    http://nymag.com/news/politics/elena-kagan-2011-12/

  26. Scott Lemieux:

    I’m not saying it’s impossible that she would cast bad votes in a war on terror case. What I am saying is that it seems really dumb to make that assumption after a war on terror case in which she voted correctly.

  27. Scott Lemieux:

    This doesn’t make sense. Standing is judicially created doctrine, and the courts make exceptions to their own juridisction rules all the time. Actually creating catch-22s is not actually consistent with the rule of law.

  28. Ramon A. Clef:

    Obama had better not try to quarter troops in MY house, by golly!

  29. rea:

    she’d joined with the wingnuts in weakening Miranda

    Not a very good analysis of the result in Howe v Fields

    It has long been settled law that an ordinary criminal suspect is (absent unusual circumstances) not “in custody” and need not be given the Miranda warnings, if he is told that he is free to leave. If the suspect is a prison inmate in custody for crimes unrelated to those for which he is being interrogated, and he is told that he is free to terminate the interrogation at any time and return to his cell, is that the equivalent of a suspect in the outside world being told that he is free to leave?

    The Court votes 9-0 that a “no” answer isn’t sufficiently “well established” to warrant habeus corpus relief. 5 Justices, including Kagen, would go farther and answer the question, “yes.”

    Now, maybe she’s wrong. But can you really say, given the unique and narrow fact situation presented by the case, that she voted to “weaken” Miranda?

  30. Major Kong:

    I got a chuckle when I saw the Catch-22 reference:

    In every B-52 I ever flew, if you looked hard enough, you could find where some navigator had scribbled “Yossarian was right!”

  31. (the other) Davis:

    Please to be pointing

  32. Mark D'ski:

    don’t mean to go off on a tangent, but where are the “2nd amendment” types during this assault on the “4th amendment”? Why aren’t they having a large (with their arms) rally in the SCOTUS parking lot?

  33. (the other) Davis:

    God damn it.

    As I was saying, please to be pointing out the language of Article III that makes this such an easy case.

  34. (the other) Davis:

    At my law school, standing was relegated to a class known as “Federal Courts” — AKA the class where they cover the doctrines that are complete and utter clusterfucks because they’re just a cover for the Justices’ policy preferences (see also habeas corpus law; abstention; § 1983 law). Not surprisingly, the class was mostly taken by students gunning to be clerks, who need to know the various tools available to help carry out their judges’ preferences. I guess this is how these doctrines get perpetuated.

    On the plus side, my prof wasn’t shy about pointing out the incoherence of many of the cases we studied.

  35. joe from Lowell:

    If you think that standing doctrine is somehow divorced from the substantive preferences of judges, I have some assertions that Sam Alito will be the next Earl Warren to sell you.

    How is this relevant to the legal question of whether ruling on standing is correct?

    I can get “I don’t like this judicial ruling for policy and ideological reasons” anywhere, Scott. What about the law, and how it treats standing?

  36. Jesse Levine:

    How the Justices appointed “would have”voted is a red herring. Scott consistently minimizes the horrible effect of the Obama administration’s anti liberties arguments by referring to the appointment of decent justices. His DOJ goes for the votes of the right wing five and gets them.

  37. David Kaib:

    If only we could treat the term “certainly impending” with the same, shall we say, flexibility we use for “imminent”, then we wouldn’t be in this mess.

    I’m not willing to go quite as far in dismissing standing as having at least some meaning aside from substantive positions. These people aren’t just people who don’t like the law – they have reason to think they are targets and therefore the harm exists regardless of whether they are in fact being targeted. Still, it’s true that the Court finds standing when it wants to.

  38. sapient:

    Standing is a judicially created doctrine that supports the Constitution’s case or controversy clause. It’s rare that I agree with the conservative justices, but I think they’re right on the decision, although for the wrong reasons.

    The dissent states that “No one here denies that the Government’s interception
    of a private telephone or e-mail conversation amounts to
    an injury that is ‘concrete and particularized.’” I would have argued that the apparently programmatic interception of private telephone or email conversations does not create an injury that is ‘concrete and particularized.’ I mean, don’t we all assume that our private electronic communications can be hacked by private hackers? If no damage is done during the course of the hacking, don’t we all think that the hacking itself shouldn’t have been punished? Wasn’t that the whole argument behind those enraged by the Aaron Swartz prosecution?

    The harm that was described by the plaintiffs was that they feared interception of electronic communications, causing them to choose a more expensive face to face method of communication. But aren’t lawyers always admonished that electronic communications are risky, and subject to unauthorized interception? Most lawyers include disclaimers in email, and know that telephone communication is risky, not only because of interception, but because of the possibility of misidentifying the party or the circumstances of the phone call.

    I think that it’s ridiculous for lawyers to expect to trust the privacy of electronic or telephonic communications in any case.

  39. ChesterNut:

    Here’s how to tell the thugs of the Obama régime togo to hell:

    http://www.youtube.com/watch?v=u4Ku17CqdZg&sns=em

    You still have 4th Amendment rights, and noone need to submit to this sort of crap.

    Resist.

  40. Anonymous:

    I dunno, is it because they would gladly live in Saudi Arabia if they were free to own all the guns and ammunition they would ever want?

  41. rea:

    Far from clear that works legally, particularly given that he’s dealing with Border Patrol.

  42. rea:

    And what Obama has to do with this is far from clear, either–this kind of Border Patrol action dates back to the 70′s, at least . . .

  43. joe from Lowell:

    The dirty little secret is that those Border Patrol agents are asking questions for the purpose of judging from your response if you are suspicious.

    If you respond to the question “Of what country are you a citizen?” or “Do you mind if I look in your trunk?” with “Um…uh…” glances around nervously…”uh, I’m an American?” you set off a ping. You look like a suspicious person. If you answer with either “I’m from the U.S.” (a cooperative answer) or “Am I being detained? In blah blah vs. blah blah, the Supreme Court ruled that…” (an uncooperative answer), it is very apparent that you are not, in fact, a drug mule trying to avoid notice.

    As much fun as some might imagine it to be to really stick to the man, man, by giving the ICE equivalent of a patrolman a hard time, doing so doesn’t actually interfere with their work at all.

  44. Barry Freed:

    Next on the agenda: gutting the Voting Rights Act.

  45. Scott Lemieux:

    His DOJ goes for the votes of the right wing five and gets them.

    Indeed, but the question actually being discussed here is whether the Obama administration caused the reactionary justices to have the views they’ve always had by making these arguments, which is obviously silly.

    I also have to disagree with your assertion that Supreme Court appointments are a mere triviality that shouldn’t come up in a discussion of a president’s civil liberties record.

  46. Scott Lemieux:

    That is pretty much how the law treats standing. What constitutes a “case or controversy” isn’t a technical legal question. For the reasons I have discussed many times, I believe it should be construed broadly.

  47. (the other) Davis:

    So the trick to successful drug trafficking is to teach your drug mules to be indignant about their Fourth Amendment rights?

  48. Scott Lemieux:

    I think that it’s ridiculous for lawyers to expect to trust the privacy of electronic or telephonic communications in any case.

    So there’s no concrete injury because we should just assume a priori that the government will systematically ignore the 4th Amendment when it comes to electronic communications? Well, if you believe that you’ll indeed love Sam Alito’s jurisprudence.

  49. Paula:

    What the Supreme Court got right.

    Dark age stuff, I know.

  50. wengler:

    Obama…he’s only mostly authoritarian.

  51. Incontinentia Buttocks:

    Well, to the extent that we spend more time worrying about GG’s overstating his case than we do about the actions of Republican and Democratic presidents against civil liberties, I’d agree that it’s proven to be counterproductive.

  52. sapient:

    I think you’re not making much of an argument here except guilt by association – you haven’t responded to any of my points.

    Is it not true that any lawyer has to be aware that electronic information is very susceptible to hacking? If not, why do so many lawyers issue disclaimers appended to their email notes? Email and telephone communications which are susceptible to being hacked are just like having a “private” conversation at a restaurant. Sure, you may think no one can hear you, but maybe somebody will.

    I don’t believe that the purpose of the 4th Amendment was to create a cone of silence or a cone of invisibility around people. It was an effort to have people not messing with you, or causing trouble for you, without a reason. The plaintiffs in this case are inconvenienced in a way that, professionally speaking, they should be inconvenienced anyway. Lawyers shouldn’t use electronic communications to discuss sensitive issues with clients, period, because it’s possible that other people can eavesdrop. If the government does it, and no one even knows about it, who cares? It might be Google who’s doing it. Or Aaron Swartz. Who cares? No one – until the information is used to hurt someone. Then the exclusionary rule comes in, etc.

  53. Loud Liberal:

    At my law school, all aspects of the doctrine of justiciability were part of required constitutional law. I can’t imagine being a lawyer not having studied justiciability. As I recall, Antonin Scalia was the most egregious abuser/misuser of the doctrine up to that time.

  54. Loud Liberal:

    I didn’t know that U.S. v. Katz was overruled?

  55. Loud Liberal:

    Why do you think he’s trying to take your guns?

  56. sapient:

    U.S. v. Katz was decided based on technology that is not widely used today.

  57. sapient:

    And, by the way, this blog has ADD, because this topic is pretty interesting and could be discussed with some thoughtful back and forth.

    For example, I don’t dispute the authority of Katz v. United States. We, as educated citizens, could talk about the possibility that the 4th amendment might have limits based on the possibility that nobody really is harmed when anonymous robots monitor email or phone communications looking for actual (real) terrorist threats.

    I mean, the 4th amendment has necessarily been kind of a cat and mouse game, in that people who want to commit a crime can outwit the police if they manage to do so in a way that is protected by the 4th amendment. But that isn’t what the 4th amendment was for – it was for protecting innocent people against invasive behavior by the government. Or am I wrong?

    Don’t call me names, please, just argue the facts. Or let the thread die because it’s so old, which is what I expect will happen. Poor LGM – too active for its own good.

  58. Hogan:

    So if a private party can break into my house and kidnap me, it’s OK for the police to break into my house and arrest me without a warrant?

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