In what the ACLU has described as a "disturbing decision," the U.S. Supreme Court on Tuesday rejected a challenge brought by human rights groups, journalists and others against the federal government's warrantless wiretapping program.
The FISA Amendments Act of 2008 the groups challenged allow the National Security Agency to conduct widespread surveillance of Americans' international phone calls and emails.
But in the 5-4 decision on Tuesday, the Court rejected the challenge. Justice Alito, who wrote the majority opinion, says that the plaintiffs lack standing:
because they cannot demonstrate that the future injury they purportedly fear is certainly impending and because they cannot manufacture standing by incurring costs in anticipation of non-imminent harm.
Wired's David Kravets writes that the decision
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was a clear victory for the President Barack Obama administration, which like its predecessor, argued that government wiretapping laws cannot be challenged in court. What’s more, the outcome marks the first time the Supreme Court decided any case touching on the eavesdropping program that was secretly employed in the wake of 9/11 by the President George W. Bush administration, and eventually codified into law twice by Congress.
"It's a disturbing decision," ACLU Deputy Legal Director Jameel Jaffer said in a statement following the decision, and adds:
The FISA Amendments Act is a sweeping surveillance statute with far-reaching implications for Americans' privacy. This ruling insulates the statute from meaningful judicial review and leaves Americans' privacy rights to the mercy of the political branches.
Justice Alito's opinion for the court seems to be based on the theory that the FISA Court may one day, in some as-yet unimagined case, subject the law to constitutional review, but that day may never come. And if it does, the proceeding will take place in a court that meets in secret, doesn't ordinarily publish its decisions, and has limited authority to consider constitutional arguments. This theory is foreign to the Constitution and inconsistent with fundamental democratic values.