Supreme Court Skips 4th, Keeps Catch-22

The U.S. Supreme Court last week declined to hear a case to stop President Bush’s domestic warrantless wiretapping, and let stand a 2-1 Appeals Court ruling that threw out the case on a technicality—a catch-22.x20 The ACLU brought the case on behalf of some journalists, scholars and lawyers, who claim that the specter of the government listening in has impaired their communication with overseas sources and clients. In 2006, U.S. District Judge Anna Diggs Taylor ruled in their favor and ordered the wiretapping program stopped:x21

The Government appears to argue here that, ... particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself. We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. ...

A catch-22 is a bureaucratic double-bind. The term comes from the title of a novel.x22 In Catch-22, the character Orr is a bomber pilot based in Italy during World War II. Orr is believed to be crazy. The rulebook says that a crazy person does not have to fly bombing missions. So Orr could ask not to fly. But, Catch-22 says that asking not to fly shows concern for one’s own safety, which is proof of sanity. So …

Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane he had to fly them. If he flew them he was crazy and didn’t have to; but if he didn’t want to he was sane and had to.

The U.S. courts reason similarly: U.S. persons are being wiretapped without a warrant by the government. The Fourth Amendment says that a person cannot be wiretapped without a warrant. So persons can sue and stop the government from wiretapping them. But, Catch-22 says that only persons who can prove they are wiretapped can sue—yet a person cannot prove that, because the government keeps any such wiretap lists secret. So … If wiretapped persons sue to stop the wiretapping, they must prove they’re on a secret wiretap list, but they can’t prove it. If wiretapped persons don’t sue, then the government keeps wiretapping them.

While the lawsuit against the Bush regime has failed, lawsuits against AT&T and Verizon for aiding the government’s illegal spying are pending.x23 These lawsuits could reveal details of reports that the Bush regime tapped into telecom data switches and sucked up communications, not just of certain persons, but of everyone, and that it began illegal wiretapping, not after September 11, 2001, but in February 2001, shortly after taking office.x24 As the House now considers changes to the foreign intelligence surveillance law (FISA), Bush and House Republicans are pressing for retroactive immunity for telecoms—which would shut down the lawsuits.x25 But the House Democratic leadership has so far held firm against such immunity.