In an entirely unsurprising but still appalling decision, the Supreme Court ruled this week that a group of lawyers, journalists and human rights activists who challenged the FISA extensions don’t have standing to bring that challenge. The case was thus dismissed, diminishing yet again any chance that anyone could ever challenge the constitutionality of the government’s actions in the war on terror.
The case is Clapper v Amnesty International. You can read the full ruling here and Lyle Denniston’s analysis of the ruling here. It was a 5-4 split along predictable lines, with Alito writing the majority opinion that was joined by Roberts, Scalia, Thomas and Kennedy, and Breyer writing the dissent on behalf of Ginsburg, Kagan and Sotomayor. Alito denies in his ruling that the majority’s denial of standing in this case leaves the FISA law essentially immune to legal challenge, but it’s hard to imagine how anyone could ever show standing under the court’s doctrines. As Lyle Denniston points out:
Pushing a highly secret government program of global wiretapping a broad step away from ever having its constitutionality judged in an open court, the Supreme Court on Tuesday shut down a lawsuit by lawyers, journalists, and others who fear that their electronic exchanges with overseas contacts are being monitored by federal listeners.
The decision, in the case of Clapper v. Amnesty International USA (docket 11-1025), split the Court five to four, with the majority reaching back to a 1923 decision in a natural gas storage case to find a restrictive rule against allowing federal lawsuits to go forward. That rule, the dissenting Justices complained, had never before been used by the Court to block a case on the theory that it did not present a live “case or controversy.”…
The decision fit into two ongoing patterns established by the modern Court: a narrowing of the scope of the right to sue in federal court as a general proposition, and a stream of decisions insulating highly secret government war programs from judicial review in the regular federal court system.
And therein lies the problem. The government has long played a highly dishonest game with standing in such cases. The program is top secret, so you have no way of ever proving you were subject to such surveillance, and if you can’t prove that, you don’t have standing. Heads they win, tails you lose. Julian Sanchez underscores this fact:
The FAA permits the government to secretly vacuum up Americans’ international communications on a massive scale, without any individualized suspicion—and at least some of that surveillance has already been determined to have violated the constitution by a secret intelligence court. Yet today’s majority has all but guaranteed no court will be able to review the constitutionality of the law as a whole by imposing a perverse Catch-22: Even citizens at the highest risk of being wiretapped may not bring a challenge without proof they’re in the government’s vast database. The only problem is the government is never required to reveal who has been spied on.
In essence, the Court has said that even if the law is unconstitutional, even if it has violated the Fourth Amendment rights of thousands of Americans, there’s no realistic way to get a court to say so.
Precisely when secrecy shields the government from public political accountability, the Clapper ruling announces, the Constitution is powerless to protect us as well.
Exactly right. If there’s no way anyone can ever have standing to challenge the legality of the government’s actions, there simply are no meaningful limits on what the government can do. The 4th Amendment is thus rendered a dead letter. And bear in mind, those of you who still cheer relentlessly for Obama, that this is exactly what he wanted, not only in this case but in every single legal challenge to the government’s actions in the war on terror. He has, despite repeated promises before taking office, worked relentlessly to make sure that the the courts never issue a ruling on the merits in any case that could limit his authority — and the authority of every president after him — to spy, arrest, detain, torture or kill.