Tuesday was a sad day for America. It was the day a little bit of freedom died, the day the National Security Agency (NSA) won, and the day that the Obama administration got its way for good. More specifically, the Supreme Court refused to hear a challenge to the Foreign Intelligence and Surveillance Act (FISA), a Bush-era law that gives the NSA permission to eavesdrop on American citizens secretly and without a warrant.
In a 5-4 vote, the justices ruled that the plaintiffs arguing against FISA couldn't prove that they had been or would be harmed by the law, despite the law's obvious conflicts with the Fourth Amendment. The decision also means that the court is unlikely to hear any more cases about FISA, which Congress recently and rather quietly extended for another five years in an overwhelmingly bipartisan vote. As Mother Jones's Adam Serwer asserts, this is especially infuriating since a number of members of Congress clearly don't know what the law does.
Civil rights activists are obviously not happy about this. The initial case was launched back in 2008 when Congress passed the FISA Amendments Act, broadening the powers of the secret post-9/11 program. Amnesty International and the American Civil Liberties Union led a motley crew of organizations journalists, and lawyers representing Guantanamo Bay detainees to challenge the law. After the court for the Southern District of New York rejected the claim in 2009, a U.S. Circuit Court of Appeals affirmed the plaintiffs case, ruling that they had "reasonable fear of future injury."
This is where the case gets really frustrating. The Supreme Court walked back on that "reasonable fear of future injury" issue and basically accused the plaintiffs of predicting the future. In the writing the majority opinion, Justice Samuel Alito Jr. said that the journalists and activists "merely speculate and make assumptions about whether their communications with their foreign contacts will be acquired."
This segment from RT does a good job of breaking down how the Supreme Court blocked future challenges to FISA.
Alito added that "they cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending." In other words, opponents of FISA should shut up about the law violating the Fourth Amendment, because there's not hard evidence that the NSA is actually violating it. This is like saying you shouldn't be afraid of being murdered if you haven't been murdered yet.
It gets worse. The plaintiffs weren't able to show more proof of the NSA's snooping quite simply because that information is classified. "It's a Catch-22," Elizabeth Wydra, chief counsel for the Constitution Accountability Center, told NPR. "It's a secret program that is hard to get information about, and yet the court is seeming to require plaintiffs to get that absolute certainty before they can challenge the constitutionality of the surveillance." As one headline reads, "Supreme Court: You Can't Challenge Secret Law Because It's Secret."
Again, the nation's highest court probably won't hear any more cases about FISA, and the message that counterterrorism efforts trump the right not to be caught up in the government's "dragnet searches" has been sent. Legal experts say that the decision bears broader implications than that, however. As the nation continues to ask questions about the government's secret counterterrorism efforts (think: drones) it looks like the courts will continue to avoid getting involved.
"Absent a radical sea change from the courts, or more likely intervention from the Congress," Stephen Vladeck, a law professor at American University told the New York Times after Tuesday's decision, "the coffin is slamming shut on the ability of private citizens and civil liberties groups to challenge government counterterrorism policies, with the possible exception of Guantánamo."
Well at least freedom is still alive at Guantánamo. File that one under "Sentences I Never Thought I Would Write."
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