The late U.S. Supreme Court Chief Justice William Rehnquist once opined, “In times of war the law is silent.” That is to say, as war is the state’s supreme executive power, the courts will neither interfere nor restrict that power, and although Rehnquist has been gone from the court and life for eight years, his dictum remains. For in the recent case, Clapper v. Amnesty International, the exigencies of war prevailed over that of the Constitution or any mere notions of democracy. In the Clapper case, Amnesty, the American Civil Liberties Union, journalists, and lawyers challenged the U.S. government’s practice of warrantless wiretapping of international phone calls, emails, and other communications. The Clapper majority determined that because the parties couldn’t prove that the government did this to them or their clients, they lack standing to pursue their challenge.
Standing is a judicial concept, which determines if, or if not, someone is the proper person to sue. Calling their claim “too speculative,” Justice Samuel Alito, writing for a five vote majority noted that the plaintiffs “cannot manufacture standing by incurring costs and anticipation of non-imminent harms.” Alito pointed to the so-called FISA, or Foreign Intelligence Surveillance Court, as a safeguard over the program. In fact, the FISA court is a secret court with secret judges, which issues opinions which, too, are secret. According to published accounts, the FISA court rules for the government something like 99% of the time. Secret courts to rule on government secrecy, huh—good luck with that. We have secret prisons, so why not secret courts? William Rehnquist said, “In times of war the law is silent.” He should have said, “In times of war the law is secret.” From in prison nation, this is Mumia Abu-Jamal.
These commentaries are recorded by Noelle Hanrahan of Prison Radio.
