When the Bush administration decided to wiretap some suspects without a warrant, it was acting contrary to the procedures that had been established by Congress Foreign Intelligence Surveillance Act (FISA). Unfortunately, Congress reacted to this lawlessness by passing the Protect America Act, making warrantless wiretaps of communications involving at least one party not in the United States easier while providing immunity for past instances of illegal wiretapping. However, the new statute does not settle all of the legal questions. Congress, like the executive branch, is bound by the Fourth Amendment's prohibition of "unreasonable search and seizures." Since warrantless searches are presumptively unreasonable, there is at a minimum serious question about whether Congress can legally authorize the warrantless wiretapping of communications if at least one party is located overseas. It is not clear if these serious constitutional challenges will receive a fair hearing.
Yesterday, the Supreme Court braved the effects of Hurricane Sandy and heard oral arguments in the case of Clapper v. Amnesty International. The lawsuit concerns not the constitutionality of FISA and the Protect America Act per se, but about whether groups who might be monitored have "standing" to even bring a constitutional challenge. In the American system, there is a legal rule that people must have standing—that is, they have to show a direct personal relationship with the case—in order to bring a constitutional challenge. Both the Bush and Obama administrations have argued that organizations like Amnesty International lack the standing to challenge warrantless wiretapping because they cannot prove that they have been subject to the secret wiretaps.
The arguments offered by the government, of course, establish an obvious Catch-22: the primary potential defect of the legislation (the secrecy and lack of warrant requirements) are used to make it impossible to bring a legal challenge. Given this reality, groups that reasonably suspect that they have been monitored or could be monitored in the future should clearly be granted standing. Unfortunately, conservatives on the Supreme Court have been steadily eroding the ability of people to bring suits enforcing the religion clauses of First Amendment and environmental legislation, and it is entirely possible that the Fourth Amendment will be added to the list of laws the courts are indirectly refusing to enforce.
Lyle Denniston's reports on the oral argument give some reason for cautious optimism. There was at least some deserved skepticism directed towards the government's Catch-22, although "[i]t was not immediately clear, though, whether that worry was deep enough to lead the Court to give those attorneys a right to sue to challenge the constitutionality of the global surveillance that seems to be tracking Americans’ conversations, too." Also, a finding of standing could be a mixed blessing if the Court hears the case on the merits and guts the Fourth Amendment by upholding a broad regime of wireless wiretapping. But, nonetheless, the government's claim that the program's secrecy should essentially immunize it from constitutional challenges is wrong, and the Court should say so. If it wants to restrict Fourth Amendment freedoms, this should at least be done explicitly, rather than through an illogical procedural dodge.