Since 9/11 the nation's surveillance agencies have used a wider net to intercept international communications of potential threats. It was a step too far when Congress authorized a 2008 expansion of the Foreign Intelligence Surveillance Act that removed most constraints on the government's ability to sweep up international communications that include Americans. A ruling Tuesday by the U.S. Supreme Court that prevents a group of journalists, lawyers and human rights activists from challenging the law shuts the courthouse door on an effort to protect Americans' privacy rights and diminishes the system's checks and balances.
Among those who sought to challenge the law's constitutionality are lawyers who represent Guantanamo detainees, human rights researchers who track down people rendered to other countries by the CIA, and journalists whose sources are people who have been suspected terrorists, their families and associates. The plaintiffs asserted it is highly likely their communications with their overseas contacts have been intercepted by the National Security Agency acting under the 2008 FISA changes. Even if that is not the case, they say, they have still been harmed by the law because they have had to pay the costs to avoid the possibility of the government overhearing their conversations, flying to face-to-face meetings and other expensive precautions.
But that logic did not win the day. Justice Samuel Alito, writing for the 5-4 majority that included the court's four conservative justices and Justice Anthony Kennedy, said that since the plaintiffs could not demonstrate they had been surveilled, they did not have the legal standing to bring suit.
Of course, the NSA surveillance program is highly classified. It is impossible for the plaintiffs to know whether their calls, texts or emails have been intercepted. And there's the difficulty. If no one can know if they have been victimized, no one can bring suit and the law is immune from legal challenge.
The decision relinquishes the duty of the judicial branch to ensure that the rights of individuals are not trampled by the other branches and that the rest of government acts consistent with the Constitution. It dangerously puts the court's imprimatur on tactics that both the Bush and Obama administrations have employed to keep potentially illegal government activities associated with national security from being reviewed.
While the law still requires the government to obtain a warrant from a secret Foreign Intelligence Surveillance Court, it strips away much of the court's oversight. No longer does the government have to describe specific targets of the surveillance, permitting a scattershot approach. The changes allow the government to scoop up the communications of thousands of people or more, including Americans, without any individualized suspicion that they are involved in terrorism.
By refusing to let Americans who might be harmed by this law bring their case to court, the court's conservative wing has sent the president a message that there will be no legal consequences for running roughshod over rights.