By Mark O’Brien
Impunity Watch Reporter, North America

WASHINGTON, United States — The U.S. Supreme Court rejected a lawsuit on Tuesday that challenged a federal law giving the government a broader ability to eavesdrop on international communications.

In a 5-to-4 ruling split along ideological lines, the Court shielded a government anti-terrorism program from ever facing a constitutionality challenge, at least according to court observers.

“[The decision] insulates the statute from meaningful judicial review and leaves Americans’ privacy rights to the mercy of the political branches,” said American Civil Liberties Union lawyer Jameel Jaffer in an interview with the Los Angeles Times.

The law is called the Foreign Intelligence Surveillance Act of 1978, or FISA.  Congress amended FISA in 2008, giving the National Security Agency broader authority to secretly monitor emails and phone calls of any U.S. citizens, so long as they are suspected of communicating with anyone located outside of the United States.  The amended provision was set to expire at the end of last year, but Congress renewed and reauthorized the bill for another five years.

In the now-rejected case, Clapper v. Amnesty International USA, journalists, lawyers, and human rights advocates challenged the constitutionality of the law on the grounds that they might be subject to future wiretapping.  But Justice Samuel Alito, writing for the Court’s majority, held that such fear was too speculative for the case to proceed.  In other words, they could not show that the law harmed them, so they lacked standing to sue.

“They cannot manufacture standing by incurring costs in anticipation of nonimminent harms,” Alito wrote.  The plaintiffs claimed that the reason they had not been harmed yet was because they had taken steps to avoid the surveillance — for example, traveling out of their ways to meet sources and clients in person rather than sending emails or talking on the phone.

Alito reasoned that the plaintiffs had the burden of showing they had standing.  To do that, the Justice wrote, they must point “to specific facts.”  The government had no burden to disprove the plaintiffs’ standing.

Justice Stephen Breyer wrote the Court’s dissenting opinion.  He agreed with the plaintiffs that, if they had not shown harm already, it was only a matter of time.

“Indeed, it is as likely to take place as are most future events that common-sense inference and ordinary knowledge of human nature tell us will happen,” Breyer wrote.

To the dissent, the fact the plaintiffs had to alter their work practices to avoid having confidential calls overheard indicated some harm already.

“In my view, this harm is not ‘speculative,’” Breyer added.

For further information, please see:

Supreme Court of the United States — Clapper v. Amnesty Int’l USA — 26 February 2013

GlobalPost — Supreme Court Blocks Warrantless Wiretapping Lawsuit — 26 February 2013

Los Angeles Times — Supreme Court Rules out Secret Surveillance Lawsuits — 26 February 2013

The New York Times — Justices Turn Back Challenge to Broader U.S. Eavesdropping — 26 February 2013

RT — US Supreme Court Refuses to Let Americans Challenge FISA Eavesdropping Law — 26 February 2013