FedSoc Blog

High Court Rules that Lawyers, Journalists Have No Standing to Challenge Foreign Surveillance Law


by Publius
Posted February 26, 2013, 6:44 PM

Lyle Denniston provides analysis of today's decision at SCOTUSblog:

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 ruling marked the first time that the Court had encountered a five-year-old law in which Congress, reacting to government arguments that it needed added surveillance powers to pursue the “war on terrorism,” broadly expanded federal agencies’ authority to monitor telephone, e-mail, and other communications between the U.S. and other countries, using high-volume computer-driven techniques.

Because the Court ruled that the challengers to the 2008 law did not have “standing” under the Constitution’s Article III to file their case in regular civilian court, the decision did not judge the constitutionality of the sweeping new monitoring power.  The dissenters did not do so either, but they did argue that the challengers’ case should have been allowed to proceed in lower courts.

Justice Samuel A. Alito, Jr., who wrote the majority opinion, concluded that the challengers’ lawsuit was based upon a “chain of contingencies” that would have to fall into place before their communications might be at risk of eavesdropping.  They had not shown, the opinion concluded, that harms to them were “certainly impending” –  a rigorous standard for testing the right to sue.

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.

The Alito opinion expressed a high degree of confidence that a special court, the Foreign Intelligence Surveillance Court, will guard against abuses of the new surveillance program that was freed of a number of restraints that existed under a law first passed in 1978.  That surveillance court operates in total secrecy, within the Justice Department building in downtown Washington, and almost never has turned down completely government requests for “foreign intelligence” surveillance.   It has sometimes modified those requests, however.

The Court majority said that the secret court is bound to enforce the Fourth Amendment’s guarantees of privacy, and indicated that the Supreme Court was relying upon it to do so.

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