Personal Liberty v. National Security

Justices block lawsuit over foreign intelligence surveillance

This past Tuesday, the Supreme Court rejected an effort by a group of attorneys, journalists and others to proceed with a lawsuit over the federal government’s sweeping electronic monitoring of foreigners suspected of terrorism or spying. The 5-4 conservative majority concluded that the plaintiffs lacked “standing” or jurisdiction to proceed, because they were not able to make a specific showing that they have actually been monitored.  Justice Alito said plaintiffs “cannot demonstrate that the future injury they purportedly fear is certainly impending.”

The justices did not address the larger questions of the program’s constitutionality, and this ruling will make it even harder for future lawsuits to proceed. The main issue in the case was: “Can these American plaintiffs who deal with overseas clients and co-workers file suit if they reasonably suspect – but cannot know for sure – that the government was reading and hearing their sensitive communications?” The question of personal liberty versus national security is one of the biggest, most controversial questions for the Supreme Court.

In 2008, Congress revised The Foreign Intelligence Surveillance Act to give the attorney general and the director of national intelligence greater authority to order “mass acquisition” of electronic traffic from suspected foreign terrorists or spies. Previously, this act required the government to justify a national security interest before any monitoring of phone calls and e-mails originating in another country. Also, a federal judge had to sign any search warrant.

The larger issue involves the constitutionality of the federal government’s electronic monitoring of targeted foreigners. A New York Appeals Court ruled against the Obama administration, prompting the current appeal. After such “warrantless wiretapping” was exposed, President George W. Bush moved to amend the existing law, which is designed to target only foreigners living outside the United States.

“If the government were to prosecute one of the (plaintiffs’) foreign clients using authorized surveillance, the government would be required to make a disclosure,” Alito said, while supported by Justice Roberts and Justices Scalia, Justice Kennedy and Justice Thomas. In his dissent, Justice Breyer said the harm claimed by the plaintiffs “is not speculative. Indeed 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.” He was supported by Justices Ginsburg, Sotomayor and Kagan.

A key concern now is whether this will stifle free speech of the work of lawyers, journalists, and activists by forcing them to do their jobs less diligently, for fear of being monitored and prosecuted.

For a more in-depth reading of this issue, read Clapper v. Amnesty International USA. What do you think is more important, personal liberty or national security? Are we required to give up  little of our freedom for protection? Or should the government find a better balance?

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  1. There is certainly a fine line between personal freedom and national security, which is difficult to resolve. Over the past decade, America has seen and increase in federal power with regards to infringement on fundamental rights in order to facilitate the security of our country. This is no doubt a result of the ever-changing nature of terrorism and crime in the U.S., which has been harder to monitor and prevent. Wiretapping specifically has been of great controversy over the years, as many believe it is a severe violation of our fundamental right to privacy. I agree with Justice Breyer’s dissent in this case, but am troubled with the amount of personal sacrifice our citizens need to make in order to facilitate national security. It is difficult to find a balance when many of the procedures needed to achieve security come at the price of our fundamental rights outlined in the Constitution. I personally lean towards protecting national security when faced with the possibility that another attack of 9/11 magnitude could occur if the government does not take the necessary measures to prevent such an atrocity. However, I recognize the impact of sacrificing such fundamental rights, as Alexandra mentioned, with regards to the fear it instills in citizens to carry out their daily lives with prosecution looming over their heads. This issue will definitely continue to trouble most as the mode to commit many crimes are harder to monitor and prevent.

  2. Sacrificing a little bit of personal liberty for the benefit of national security is certainly reasonable. On September 11th, the U.S. was exposed. This cannot happen again, and the government deserves a degree of flexibility from the people so that it can ensure our safety. As for lawyers, journalists, and activists, I do not think that they should do their jobs any less diligently for fear of being monitored. As long as they are acting legally, they should have no concerns. If they are violating national security, then they deserve to be prosecuted anyway. Of course I think the government should find a balance between national security and personal liberty, and I understand the difficulty in such regard, but should push come to shove, I say err on the side of caution.
    Last week I was sitting in class listening to a fellow student complain about how police officers can randomly spot-check personal bags on the NYC subways. I understand the Fourth Amendment, but are these checks really that great of an inconvenience? In my view, as long as you are not carrying anything illegal in your bag, then who cares if the police ask to take a quick peak? If this protects the security of the people in the U.S., I would gladly open my bag every time I stepped foot on the subway.
    Alexandra was accurate in assessing that the question of personal liberty versus national security is one of the most controversial issues for the Supreme Court in the present day. As Americans, we pride ourselves on the protections of the Constitution. At the same time, just a decade after September 11th, I cannot understand why people are so offended by having to sacrifice a minute amount personal liberty.

  3. Like Kristen and Patrick, I would side with national security. For those who argue that it is an infringement on their personal rights I can understand and appreciate their position but in most instances I will prefer to know the government is doing all that it can to prevent terrorist attacks. I know that my activities are not the concern of any anti-terrorist agencies so I am not concerned about my gmail account.

    With that being said, I am curious about what information these agencies are allowed to act on. For example, if someone, albeit a not very bright someone, were to plan a car jacking or to commit a burglary or some other non-terrorist crime, would the Federal Government be able to inform the proper authorities and would those authorities be able to act on that information or is the Federal Government prohibited from revealing that information? Obviously if the information was used to prevent a crime it would be a good thing, but would it be crossing the line? Another issue that could be raised in this situation is would these emails be enough to convict under a theory of attempt/ conspiracy or would the potential crimes be prevented too soon to allow a proper conviction?

  4. Without our national security, we would have no personal liberty to begin with. I have a hard time siding with people who get offended when the government tries to take steps to insure the security of our country. The United States is a target, especially in today’s world of international terrorism. This may not be as big of a concern if we were impervious to attack, but that is clearly not the case. 9/11 is the most glaring example of our vulnerability; however, attacks on the USS Cole, and the original bombing of the World Trade Center in 1993 also prove that we can be hit by motivated terrorists. Moreover, the threat is not only from foreign groups. Anyone old enough to remember the Unabomber or the Oklahoma City bombing would be well aware that the threat can come from domestic individuals as well. Allowing Big Brother to check up on our citizens may be invasive and may cost a few extra minutes at airports and subways, but the added security we gain as a nation from these “invasions” is worth the hassle.

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