The United States Supreme Court will not let Americans challenge a provision in a foreign intelligence law that lets the federal government secretly eavesdrop on the intimate communications of millions of Americans.
On Tuesday, the top justices in the US said the country’s highest court will not hear a case in which Amnesty International and a slew of co-plaintiffs have contested a provision of the Foreign Intelligence Surveillance Act of 1978, or FISA, that lets the National Security Agency silently monitor emails and phone calls [.pdf].
Under the FISA Amendments Act of 2008 (FAA), the NSA is allowed to conduct electronic surveillance on any US citizen as long as they are suspected of conversing with any person located outside of the United States. That provision was scheduled to expire at the end of 2012, but Congress voted to re-up the bill and it was put back on the books for another five years.
Along with human rights workers and journalists, Amnesty International first challenged the FAA on the day it went into effect, arguing that the powers provided to the NSA under the FISA amendments likely puts the plaintiffs and perhaps millions of other Americans at risk of surveillance. Now years later, though, they are finally being told that they cannot challenge the law that, while meant to collect foreign intelligence, puts every person in the country at risk of being watched.
“Under the FAA, the government can target anyone — human rights researchers, academics, attorneys, political activists, journalists — simply because they are foreigners outside the United States, and in the course of its surveillance it can collect Americans’ communications with those individuals,” the American Civil Liberties Union wrote on behalf of the plaintiffs in a legal brief filed last year with the court.
Amnesty, et al have been pursuing an injunction against the NSA in their lawsuit, which names former NSA-Chief James Clapper is a co-defendant. Because the plaintiffs cannot prove that they’ve actually been targeted under the FAA, however, the case is been stalled endlessly.
In last year’s filing, the ACLU acknowledged that an appeals court panel agreed in 2011 that “plaintiffs have good reason to believe that their communications, in particular, will fall within the scope of the broad surveillance that they can assume the government will conduct,” and the full body of US Court of Appeals for the Second Circuit later refused the government’s attempts to have them reconsider.
“But instead of allowing the case to be heard on the merits, the Obama administration asked the Supreme Court to review the case,” the ACLU’s Ateqah Khaki, wrote. “Our brief urges the Court to affirm the appeals court’s decision.”
On Tuesday, however, the Supreme Court dismissed the claims that the plaintiffs were being watched under the FAA. Amnesty and others had argued that the presumed surveillance they were subjected to has caused them to go out of their way to maintain working relationships with clients, forcing them to travel abroad to communicate without the fear of being monitored.
In the suit, the plaintiffs have said that because they communicate “with people the Government ‘believes or believed to be associated with terrorist organizations,’ ‘people located in geographic areas that are a special focus’ of the Government’s counterterrorism or diplomatic efforts, and activists who oppose governments that are supported by the United States Government,” they’ve undertaken “costly and burdensome measures” to protect the confidentiality of sensitive communications.
"This theory of future injury is too speculative," Justice Samuel Alito said in announcing the 5-4 decision, calling it "hypothetical future harm."
“In sum, respondents’ speculative chain of possibilities does not establish that injury based on potential future surveillance,” the court ruled. “[R]espondents’ self-inflicted injuries are not fairly traceable to the Government’s purported activities under [the FAA] and their subjective fear of surveillance does not give rise to standing.”
But only last year, Amnesty et al were given good reason to worry right from the NSA: Senators Ron Wyden (D-OR) and Mark Udall (D-CO) sent a letter to the Office of the Inspector General of the Intelligence Community asking, “how many people inside the United States have had their communications collected or reviewed under the authorities granted by section 702” of the FISA Amendment Act (FAA). The NSA responded by rejecting the lawmakers’ request, and said a “review of the sort suggested would itself violate the privacy of US persons.”
“All that Senator Udall and I are asking for is a ballpark estimate of how many Americans have been monitored under this law, and it is disappointing that the Inspectors General cannot provide it,” Sen. Wyden told Wired’s Danger Room at the time. “If no one will even estimate how many Americans have had their communications collected under this law then it is all the more important that Congress act to close the ‘back door searches’ loophole, to keep the government from searching for Americans’ phone calls and emails without a warrant.”
In the court’s majority opinion, five justices even added that the government’s ability to wiretap Americans doesn’t begin and end with FISA, either. "The Government has numerous other methods of conducting surveillance, none of which is challenged here,” they ruled.
“Because respondents do not face a threat of certainly impending interception” under FISA, “the costs that they have incurred to avoid surveillance are simply the product of their fear of surveillance,” the court told the plaintiffs.
Journalists Chris Hedges and Naomi Klein joined Amnesty in the case, along with Joanne Mariner, the Terrorism and Counterterrorism Program Director at Human Rights Watch, attorney Sylvia Royce and others.
Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas ruled in the majority. Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan all dissented.