SCOTUS to Decide if POTUS Can Cow Americans, Crush Their Spirit, and Put Terror in Every Heart

Article is used with permission by authors in it’s entirety.

On October 29, 2012, oral argument is scheduled 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,, 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.

While FISA was 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.

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 publicly 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/

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.

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 these were personal freedom …
inviolability of the home [and] secrecy of letters and other communications….”
However, the Weimar Constitution 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

In order to meet the predicate for this suspension of rights, Harris reports “[a]
conflagration was needed. And it was plain that the Nazis themselves would have to
set the fire. The plan finally agreed upon was the burning of the Reichstag.” This false
flag operation 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 attributed the nation’s threat 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. He asserted that Fourth Amendment rights “belong in the catalog of
indispensable freedoms.” Justice Jackson continued, explaining 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.”

Just because the United States Constitution has no provision expressly
authorizing 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.
No doubt, many Germans felt it couldn’t happen under the Weimar Republic either.
Greatly accelerated by the events of 9-11, a supine Congress has already deferred to
the exercise of arbitrary Presidential powers based on the wartime rationale of
necessity that could lead to the same dark and dangerous place. 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 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’s 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.