The US Supreme Court, in a 5-4 ruling, decided that a group of attorneys, journalists, and human rights activists had not established “certainly impending” to proceed with their case that challenged the constitutionality of the Foreign Intelligence Surveillance Act (FISA) of 2008.
The merits of the claim were not the concern and it was the first time that the court had refused to allow the right to sue because the fact that the interception of the phone calls and emails was not “certainly impending.”
Because the law authorizes secret wiretaps, there is no way to prove who might be a victim, but only victims have legal “standing” to file lawsuits, and therefore nobody can bring a case for judicial review of the law’s constitutionality.
FISA followed the Watergate-era of unchecked government wiretapping on American citizens who were engaged in political and cultural activities. The Fourth Amendment of the U.S. Constitution forbids “warrantless eavesdropping.” FISA limited wiretapping to acquiring “foreign intelligence information” targeting a “foreign government or agent” in 1978 when it was first enacted. That was the case then but in 2008, Congress amended FISA
to eliminate the requirements that the target must be a specified “foreign power or an agent of a foreign power” and that the warrant application must identify the precise facility where the electronic surveillance is to take place. In effect, the 2008 FISA amendment authorizes “roving wiretaps” of communications between places in the United States and foreign countries that are essentially warrantless.
The case of Clapper v. Amnesty International has essentially narrowed the doctrine of “standing” to the point that virtually all secret government activity has become immune from challenge. The case was first filed within the hour after the amendment. The plaintiffs were asking the District Court of New York to declare the amendment unconstitutional. The plaintiffs were self-described to be people and organizations that
communicate by telephone and e-mail with people the government “believes or believed to be associated with terrorist organizations,” with “people located in geographic areas that are a special focus” of so-called “counterterrorism” efforts, and with “activists who oppose governments supported by the United States.”
The plaintiffs stated that the threat of secret wiretapping interferes with the lawyers’ ability to locate and interview witnesses or advise clients in confidence. Journalists were also impacted in their ability to obtain information for news reports from confidential sources. The threat of surveillance had pushed some plaintiffs to travel for in-person conversations and to take expensive and burdensome measures to protect the confidentiality of their sensitive communications.
The United States Court of Appeals for the Second Circuit, found that “an objectively reasonable likelihood that their communications will be intercepted” was established and gave standing to the plaintiffs to challenge the constitutionality of the amended FISA. The Supreme Court majority reversed.
The decision relied on the absence of “any evidence that their communications have been monitored” even though it was secret program.
The majority decision stated, “no one would have standing is not a reason to find standing,” and that the burdensome measures that had to be taken were “self-inflicted injuries.”
The minority, however, were able to find that many Supreme Court precedents could have given the plaintiffs standing to bring suit.
For a more detailed picture of the arguments in opposition visit Global Search.
From a different perspective,
no constitutional principle dictates that every federal statute should be subject to challenge in federal court. Even in the absence of direct judicial review of the statute, the potential for Executive Branch excesses is subject to a number of checks. For example, no surveillance can be undertaken under the FAA without the approval of the FISA Court, and Congress regularly exercises its oversight authority to ensure that the Executive Branch is properly balancing the nation’s security needs with the constitutional rights of individual citizens. There is no reason for the courts to second-guess that balance at the behest of individuals who cannot even demonstrate that they have been injured.
For a more detailed picture of the argument in support of the Supreme Court’s decision visit Forbes.