JOURNALISTS and human rights advocates worried they are being swept up in an electronic dragnet cannot challenge the U.S. government’s secretive warrantless wiretapping program in a lawsuit, the United States Supreme Court ruled in a 5-4 decision on Tuesday.
The court’s decision, handed down in a case called Clapper v. Amnesty International USA, will complicate civil libertarians’ efforts to push back against the post-9/11 expansion of surveillance.
Jameel Jaffer, the deputy legal director of the American Civil Liberties Union and the lawyer for the plaintiffs, said in a statement the ruling was a “disturbing decision” that “insulates the [warrantless wiretapping] statute from meaningful judicial review and leaves Americans’ privacy rights to the mercy of the political branches.”
At issue is the government’s warrantless wiretapping program, begun in secret and without congressional authorization under the George W. Bush administration. In the wake of a 2008 federal law passed to legalize that program, the National Security Agency and other agencies are supposed to be able to read emails and listen in on phone calls without a warrant — but only when they are targeting foreign nationals.
Journalists and others pressing the case as plaintiffs, however, worry that American citizens could have their calls swept up if they happened to contact the NSA’s targets. They filed suit in a First Amendment challenge against the law the day it was passed. The ruling on Tuesday will block their lawsuit but does not touch on the constitutionality of the wiretapping program itself.
The court’s ruling amounts to something of a catch-22 for the plaintiffs. The program is so secret that reporters and human rights advocates don’t know whether they’re being wiretapped. But because they don’t know whether they’re actually having their calls picked up, Justice Samuel Alito wrote in his opinion for the court’s conservative majority, the plaintiffs’ argument that they have the standing to challenge the program was based on a “highly speculative fear.”
The plaintiffs, Alito argued, “have no actual knowledge of the Government’s … targeting practices.” They “can only speculate as to how the Attorney General and the Director of National Intelligence will exercise their discretion in determining which communications to target.”
Better luck next time, Alito added: if a terrorist is ever charged based on information picked up under the warrantless wiretapping law, maybe his lawyer can challenge it in court.
Justice Stephen Breyer, responding in a dissent for the court’s liberal minority, wrote that the harm the warrantless wiretapping law was causing is not merely speculative. He cited an array of news reports about the wiretapping program from 2005 to 2010, and noted that even the U.S. government has said it is “impossible” to calculate how many Americans are having their communications tapped. He thought it was highly unlikely that no Americans were getting caught up.
“Perhaps, despite pouring rain, the streets will remain dry,” he wrote. But that’s not too wild an inference, he added. “We need only assume that the Government is doing its job (to find out about, and combat, terrorism) in order to conclude that there is a high probability that the Government will intercept at least some electronic communication to which at least some of the plaintiffs are parties.”
The court’s ruling in this case that the plaintiffs — from Amnesty International researchers to journalist Chris Hedges — do not have the proper legal standing to challenge the warrantless wiretapping law will likely make future challenges against it more difficult. The Supreme Court has set a high bar for civil libertarians hoping to prove that they are being harmed.
“This is a very depressing decision, but one that has become routine in a court system that when faced with what the government insists are matters of national security writes lengthy opinions about why the courts cannot defend the rule of law,” Hedges wrote in an email. He added that he hopes his ongoing lawsuit against the government over a separate law authorizing the indefinite military detention of suspected terrorists will fare better.
Outside of the judiciary, a number of civil liberties-minded senators pushed for reforms of the wiretapping law in a December debate over its renewal. They were unsuccessful.