Despite Hurricane Sandy, the Supreme Court on Monday entertained oral arguments on whether it should halt a legal challenge to a once-secret warrantless surveillance program targeting Americans’ communications, a program that Congress eventually legalized in 2008.
The hearing marked the first time the Supreme Court has reviewed any case touching on the eavesdropping program that was secretly employed by the President George W. Bush administration in the wake of the Sept. 11, 2001 terror attacks, and largely codified into law years later.
Just three weeks ago that the Supreme Court closed a six-year-old chapter in the Electronic Frontier Foundation’s bid to hold the nation’s telecoms liable for allegedly providing the National Security Agency with backdoors to eavesdrop, without warrants, on Americans’ electronic communications in violation of federal law. The justices, without comment, declined to review a lower court’s December decision dismissing the EFF’s lawsuit. At the center of the dispute was legislation retroactively immunizing the telcos from being sued for cooperating with the government in Bush’s warrantless spy program.
Fast forward to Monday, and the court took the historic step of hearing a post-September 11 spying case. Judging by the high court’s deference to Congress in general and how it killed the EFF spy case weeks ago, we likely already know the outcome of this highly complex issue now before the justices: Warrantless spying is expected to continue unabated for years, and possibly forever.
University of Baltimore legal scholar Garrett Epps in a Sunday blog post in the Atlantic asked in a headline whether “Big Brother is the New Normal?” His own affirmative answer is spot-on:
“Whatever the court decides, Big Brother will still be watching. Big Brother may be watching you right now, and you may never know,” he said. “Since 9/11, our national life has changed forever. Surveillance is the new normal.”