SCOTUS, SPYING AND SECRECY: In a radical assault on the Fourth Amendment, the Supreme Court ruled on February 26 that clients of the American Civil Liberties Union—including The Nation and Nation contributors Naomi Klein and Chris Hedges—could not challenge the sweeping surveillance law known as the FISA Amendments Act. Congress passed the law in 2008, in the wake of revelations that the National Security Agency had conducted surveillance of Americans’ international phone calls and e-mails without judicial review.
In a decision that sounds like it was drawn straight from Kafka, Justice Samuel Alito, writing for the 5–4 majority, threw out the challenge because the plaintiffs (who also include Human Rights Watch, Amnesty International USA, the PEN American Center and the Service Employees International Union) couldn’t prove they had actually been monitored—even though no such proof is possible because the surveillance is secret. ACLU deputy legal director Jameel Jaffer, who argued the case, Clapper v. Amnesty International USA, before the Court last October, said, “This ruling insulates the statute from meaningful judicial review and leaves Americans’ privacy rights to the mercy of the political branches.”
In his dissent, Justice Stephen Breyer argued that the surveillance is far from speculative. “Indeed,” he wrote, “it is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen.” And as Hedges points out, “The ability of the government to monitor private communications, especially of journalists, is one that makes the practice of journalism ultimately impossible.” It is particularly disappointing that President Obama, who supported the law but promised to amend its excesses, signed legislation last December extending it without alteration for another five years. For more information, go to aclu.org. ROANE CAREY
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DEAR FCC, TIME TO ACT: Last month, former Federal Communications Commission chair Michael Copps wrote an editorial in our pages titled “One Easy Way to Shine a Light on Dark Money.” In this post–Citizens United era, and in the absence of the political will to “rein in the Super PACs and dark money that made the 2012 campaigns among the least informative and most distorted in American history,” Copps pointed out that the FCC can take action on its own. The Communications Act “requires on-air identification of the sponsors of all advertisements, political as well as commercial,” he wrote. Indeed, “the FCC stipulated years ago that political ads must ‘fully and fairly disclose the true identity of [the entities]’ paying for them.” Copps concluded: “The ball is in the FCC’s court.”
Now, a new report by the Government Accountability Office echoes his claim, finding that under current law, the FCC has the power to require an attack ad’s sponsors to be identified. The report was compiled at the request of Nancy Pelosi, who is pressing the FCC to act. So is California Congresswoman Anna Eshoo, who welcomed the FCC’s findings. “Where power once originated from the general electorate, that balance has shifted in favor of the enormously wealthy, who can now hide their identity and their political expenditures,” she said. “It’s time for the FCC to play a crucial role in bringing greater transparency to America’s electoral system.”