The Obama justice department succeeded in convincing the five right-wing Supreme Court justices to dismiss a lawsuit challenging the constitutionality of the 2008 law, the FISA Amendments Act, which vastly expanded the government's authority to eavesdrop on Americans without warrants. In the case of Clapper v. Amnesty International, Justice Samuel Alito wrote the opinion, released today, which adopted the argument of the Obama DOJ, while the Court's four less conservative justices (Ginsberg, Breyer, Sotomayor and Kagan) all dissented. This means that the lawsuit is dismissed without any ruling on whether the US government's new eavesdropping powers violate core constitutional rights. The background of this case is vital to understanding why this is so significant.
One of the most successful government scams of the last decade has been to prevent any legal challenges to its secret surveillance programs. Both the Bush and Obama
DOJ's have relied on one tactic in particular to insulate its eavesdropping behavior from judicial review: by draping what it does in total secrecy, it prevents anyone from knowing with certainty who the targets of its surveillance are. The DOJ then exploits this secrecy to block any constitutional or other legal challenges to its surveillance actions on the ground that since nobody can prove with certainty that they have been subjected to this eavesdropping by the government, nobody has "standing" to sue in court and obtain a ruling on the constitutionality of this eavesdropping.
The Bush DOJ repeatedly used this tactic to prevent anyone from challenging the legality of its eavesdropping on Americans without the warrants required by the FISA law. That's another way of saying that the Bush administration removed their conduct from the rule of law: after all, if nobody has standing to obtain a court ruling on the legality or constitutionality of their conduct, then neither the law nor the Constitution constrain what the government does.
The Obama DOJ has embraced this tactic in full. In 2008, the Democratic-led Congress (with the support of then-Sen. Barack Obama) enacted the so-called FISA Amendments Act, which dramatically expanded the government's warrantless eavesdropping powers beyond what they had been for the prior 30 years. The primary intention of that new law was to render the Bush warrantless eavesdropping program legal, and it achieved that goal by authorizing the NSA to engage in whole new categories of warrantless surveillance aimed at Americans.
Since its enactment, the Obama administration has been using that massively expanded eavesdropping authority to spy on the electronic communications of Americans without the need to obtain specific warrants (the law simply provides that the government must periodically obtain court approval for their general methods of eavesdropping, but not approval for their specific eavesdropping targets). At the end of last year, the Obama administration relied on overwhelming GOP Congressional support to extend this law for another five years without a single reform.
Immediately upon enactment of this new law in 2008, the ACLU filed a lawsuit alleging that the warrantless eavesdropping powers it vests violate the First and Fourth Amendments. The plaintiffs in the case are US lawyers, journalists, academic researchers and human rights activists and groups (such as Amnesty) who work on issues of terrorism, foreign policy and human rights. They argued that they have standing to challenge the constitutionality of the eavesdropping law because its very existence impedes their work in numerous ways and makes it highly likely that their communications with their clients and sources will be targeted for interception by the NSA.
Because the Obama administration insists that it is a secret who they target for eavesdropping, neither these plaintiffs - nor anyone else - can prove with absolute certainty that they or their clients have been targeted. Taking a page (as usual) from the Bush DOJ, the Obama DOJ thus argued in response to this lawsuit that this secrecy means that nobody has "standing" to challenge the constitutionality of this law. With perfect Kafkaesque reasoning, the Obama DOJ says that (1) who we spy on is a total secret, and therefore (2) nobody has the right to obtain a judicial ruling as to whether what we are doing is legal or constitutional.
It is true that "standing" is an important doctrine: the requirement that a person first prove that they have been uniquely harmed by a law they want to challenge is not only necessary to fulfill the Constitution's limitation on the federal court's power (which confines their authority to actual "cases or controversies"), but it also prevents the Court from acting as a free-floating arbiter that rules on every political question. Courts can only rule on actual cases where one party has concretely harmed another.
In 2011, the Second Circuit Court of Appeals rejected the Obama DOJ's arguments and ruled that plaintiffs had standing to challenge the eavesdropping law given the concrete harms they are suffering from the mere existence of these eavesdropping powers. Rather than defend the constitutionality of the law, the Obama DOJ appealed this decision to the Supreme Court, and asked the court to dismiss the suit on standing grounds, without reaching the merits of the lawsuit.
Today, the Supreme Court, by a 5-4 decision, agreed to do exactly that. Justice Alito (joined by Scalia, Thomas, Roberts and Kennedy) fully embraced the Kafka-like rationale of the Obama DOJ. They rewarded the government for its extreme secrecy by using it to bar any challenges to the law; said Alito:
"[Plaintiffs] have no actual knowledge of the Government's §1881a targeting practices. Instead, [plaintiffs] merely speculate and make assumptions about whether their communications with their foreign contacts will be acquired under §1881a. . . . [Plaintiffs], however, have set forth no specific facts demonstrating that the communications of their foreign contacts will be targeted. Moreover, because §1881a at most authorizes — but does not mandate or direct — the surveillance that [plaintiffs] fear, [plaintiffs'] allegations are necessarily conjectural. . . . Simply put, [plaintiffs] 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."
