ACLU v. Clapper Ruling

Dees Illustration

Stephen Lendman
Activist Post

A previous article said the following:

On June 11, the ACLU filed suit. It challenged “the constitutionality of the National Security Agency’s mass collection of Americans’ phone records.”

It argued that doing so violates Fourth and First Amendment rights, saying:

Because the NSA’s aggregation of metadata constitutes an invasion of privacy and an unreasonable search, it is unconstitutional under the Fourth Amendment. 

The call-tracking program also violates the First Amendment, because it vacuums up sensitive information about associational and expressive activity.

NSA claims authorization under the Patriot Act’s Section 215. It’s known as the “business records” provision.

It permits collecting “any tangible thing…relevant” to alleged foreign intelligence or terrorism related investigations. It way oversteps. It’s unconstitutional.

It permits warrantless searches without probable cause. It violates fundamental First Amendment rights. It does so by mandating secrecy.

It prohibits targeted subjects from telling others what’s happening to them. It compromises free expression, assembly and association.

It does so by authorizing the FBI to investigate anyone based on what they say, write, or do with regard to groups they belong to or associate with.

It violates Fourth and Fifth Amendment protections by not telling targeted subjects their privacy was compromised. It subverts fundamental freedoms for contrived, exaggerated, or nonexistent security reasons.

“Whatever Section 215’s ‘relevance’ requirement might allow, it does not permit the government to cast a seven-year dragnet sweeping up every phone call made or received by Americans,” said ACLU.

The 1978 Foreign Intelligence Surveillance Act (FISA) authorized surveillance relating to “foreign intelligence information” between “foreign powers” and “agents of foreign powers.”

It restricts spying on US citizens and residents to those engaged in espionage in America and territory under US control.

No longer. Today anything goes. America is a total surveillance society. Obama officials claim no authority can challenge them.
Governing this way is called tyranny.

On December 16, Federal District Court of the District of Columbia Judge Richard Leon ruled against NSA spying.

He called it “almost Orwellian” and much more, saying:

The threshold issue is whether plaintiffs have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephone metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all of that metadata for five years, and then queries, analyzes, and investigates that data without prior judicial approval of the investigative targets. 

I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. 

Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.

It’s core constitutional law. It prohibits unreasonable searches and seizures. Mass NSA surveillance does it lawlessly.

It has nothing to do with national security. Claims otherwise ring hollow. America spies for control. It does so for economic advantage. Espionage is longstanding policy.

Corporate secrets are stolen. So are political ones. Top foreign government and business officials are spied on. Virtually everyone is fair game.

Domestic spying is longstanding. It’s unconstitutional. It doesn’t matter. Two federal judges disagreed. If ACLU appeals to the Supreme Court, it’ll likely lose.

It’s stacked with right-wing extremists. Five current justices are Federalist Society members: Chief Justice John Roberts, Antonin Scalia, Samuel Alito, Anthony Kennedy, and Clarence Thomas.

Elena Kagan is ideologically sympathetic. As dean of Harvard Law School, she hired Bush’s outgoing Office of Legal Counsel director, Jack Goldsmith. Francis Boyle called him a war criminal.

Kagan bragged about putting him on staff. Boyle quoted her saying she “love(s) the Federalist Society.” It’s ideologically over-the-top. It’s extremely right-wing.

With these type justices on America’s High Court, ordinary people haven’t a chance. Nor judicial fairness.

In September 2012, Congress overwhelmingly passed the 2012 FISA Amendments Reauthorization Act.

Obama signed it into law. He called doing so a national security priority. He lied. It reflects police state lawlessness. It extends the 2008 FISA Amendments Act (FAA). It’s for another five years.

It authorizes warrantless spying. It does so without naming names or probable cause. It violates Fourth Amendment protections.

Overseas phone calls, emails, and other communications of US citizens and permanent residents may be monitored without authorization. Perhaps domestic ones covertly.

Probable cause isn’t needed. Anything goes is policy. Constitutional protections don’t matter. Police states operate this way.

ACLU lawyers filed suit. It passed through lower courts to the Supremes. In October 2012, High Court justices heard oral arguments. Clapper v. Amnesty International challenged the constitutionality of warrantless spying.

On February 26, the Supreme Court ruled. It dismissed ACLU’s case. It violated constitutional protections doing so.

It ruled against lawyers, journalists, human rights groups, and others challenging protections too important to lose.

It said they couldn’t prove surveillance was “certainly impending.” They didn’t have required standing to sue, they claimed.

Saying so was absurd on its face. It’s a standard never before used. Imposing it denies the legitimate right to sue. Doing so reflects police state justice.

It wasn’t the first time fundamental rights were denied. It won’t be the last. Warrantless electronic spying is intrusive. It’s institutionalized.

Congress approves. So does Obama. America’s Supremes violated the public trust. They’ve done it many times before. They’ll do it again. Lawless NSA spying is safe in their hands.

In ACLU v. Clapper, Judge William Pauley heard arguments. ACLU called for the program to be ended. Ahead of the hearing, its legal director, Jameel Jaffer, said:

This vast dragnet is said to be authorized by Section 215 of the USA Patriot Act, but nothing in the text or legislative history of that provision remotely suggests that Congress intended to empower the government to collect information on a daily basis, indefinitely, about every American’s phone calls. 

This kind of dragnet surveillance is precisely what the fourth amendment was meant to prohibit. 

The constitution does not permit the NSA to place hundreds of millions of innocent people under permanent surveillance because of the possibility that information about some tiny subset of them will become useful to an investigation in the future.

ACLU argued against blanket seizure of its phone records. Doing so violates its core constitutional rights. It compromises its ability to work with journalists, advocacy groups, whistleblowers and others.

It claimed standing because NSA has access to its phone records. It didn’t matter. Judge Pauley rejected its challenge. He called mass NSA surveillance legal.

He called it a valuable tool against terrorism. He said it “only works because if collects everything.” He either lied or doesn’t understand what’s going on.

He claimed meta-data collection “represents the government’s counter-punch” against Al Qaeda’s terror network.

“The collection is broad, but the scope of counterterrorism investigations is unprecedented,” he said.

Mass phone data collection “significantly increases the NSA’s capability to detect the faintest patterns left behind by individuals affiliated with foreign terrorist organizations.”

Armed with all the metadata, NSA can draw connections it might otherwise never be able to find.

Without them, he claimed, “the civil liberties of every citizen” would be “imperil(ed).”

The question for this court is whether the government’s bulk telephony metadata program is lawful. This court finds it is. 

But the question of whether that program should be conducted is for the other two coordinate branches of government to decide.

Judge Pauley nonsensically said mass telecommunications surveillance could have perhaps prevented 9/11.

“The government learned from its mistake and adapted to confront a new enemy: a terror network capable of orchestrating attacks across the world,” he claimed.

It launched a number of counter-measures, including a bulk telephony metadata collection program – a wide net that could find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data.

It bears repeating. NSA mass surveillance has nothing to do with national security. Pauley knows nothing about spying. His ruling reads like an NSA press handout. His legal judgment leaves much to be desired.

Most other federal judges are no better. Police state lawlessness remains in good hands. Judge Leon is an exception who proves the rule.

He’s an unheard voice in the wilderness. We need lots more to make a difference. We need them throughout the judiciary.

We need them on the highest court in the land. We need them in all government branches. We need what we don’t have.

Stephen Lendman lives in Chicago and can be reached at His new book is titled How Wall Street Fleeces America: Privatized Banking, Government Collusion and Class War. Also visit his blog site at and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.

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