The Supreme Court issued an important ruling on Tuesday, voting 5-4 against hearing a challenge to a law that worked to increase the government’s power to listen in on international phone calls and emails. Given the ruling, it likely means the Court will never actually decide on the constitutionality of the 2008 Foreign Intelligence Surveillance Act (FISA).
Experts said the decision was important in that it showed how hard it has become for civil rights groups and private citizens to challenge the government’s counterterrorism policies. The reason being that the majority of the Court said that the journalists and human rights groups who challenged the law were not able to show how they had been harmed by it and thus lacked the standing necessary to bring such a challenge.
The groups that brought the suit argued that they had standing because they feared that in the future they might be the victims of such government surveillance. The majority of the Court decided this possible future threat was too tangential to provide standing. Another tactic taken by the plaintiffs was to argue that they had incurred considerable expenses to avoid potential surveillance by the government, for instance, some journalists paid to fly to meet sources in person rather than risk talking over the phone. Alito, writing for the majority, said that the plaintiffs could not manufacture standing by purposely incurring costs.
The plaintiffs further argued that they should be allowed to bring the case given that only the government, the defendant in the case, knows whether the plaintiffs were surveilled and thus whether they were damaged. The Court rejected this idea too, saying that it is the plaintiffs’ responsibility to prove standing, not the defendant’s job to disprove it.
The case revolved around the FISA legislation which Congress initially passed in the wake of 9/11 and later amended in 2008. The Act gave broad powers to the executive branch to conduct surveillance of individuals overseas without going through the process of getting a warrant. The plaintiffs brought suit saying the Act violated their rights under the Fourth Amendment by allowing the government to intercept emails and telephone calls without a warrant.
The majority said it was satisfied that the wiretapping program was subject to safeguards including supervision by the Foreign Intelligence Surveillance Court which meets in secret and is supposed to review actions taken under FISA. Alito wrote that it was possible that some day someone might have standing to challenge the law. The example he gave was if the government decided to use information gathered under the program in a criminal prosecution then it might allow the victim of that surveillance to bring a claim with sufficient standing. Alito appeared to not be concerned that the realistic chance of such a situation happening was slim to none.
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(Lee Davis is a Chattanooga attorney who can be reached at lee@davis-hoss.com or at 266-0605.)