Secret Wiretapping Cannot Be Challenged Because It's Secret

By delegating broad authority to the executive branch to engage in warrantless wiretapping of Americans, the Foreign Intelligence Surveillance Act (FISA) raises serious potential constitutional issues. The Fourth Amendment, which forbids "unreasonable" searches and seizures and under which warrantless searches are presumptively unconstitutional, is difficult to square with the kind of powers claimed by Congress and the Executive Branch. Today, however, the Supreme Court decided to duck this crucial constitutional issue based on almost comically illogical reasoning.

The Court's 5-4 opinion in Clapper v. Amnesty International was, appropriately enough, written by Samuel Alito, who is more consistently hostile to civil liberties than any justice in at least half a century. The Court ruled that the journalists, organzations, and human rights lawyers bringing the suit lacked the "standing" to bring a lawsuit challenging FISA on 4th Amendment grounds. The American constitutional system requires that someone bringing a lawsuit most demonstrate a concrete injury or stake in the case. Alito, writing for the Court's four other Republican appointees, argued that "the respondents merely speculate and make assumptions about whether their communications with their foreign contacts will be acquired," and hence did not have the concrete, pending injury necessary for standing.

As I wrote last year, this argument is a classic Catch-22. The very secrecy that contributes to making FISA procedures so problematic acts to insulate the program from constitutional scrutiny, logic that should be considered self-refuting. The stringent standards used by the majority, as Justice Breyer's dissent explains, are not required by either the text of the Constitution or the Supreme Court's precedents, and nor can the potential harms be considered merely "speculative: "Indeed it is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen. This Court has often found the occurrence of similar future events sufficiently certain to support standing."

This case is also an illustration of why the Court's increasing barriers to granting standing undermine constitutional protections. Alito's opinion argues that the Court's standing doctrine "serves to prevent the judicial process from being used to usurp the powers of the political branches." But as applied to this case the argument is nonsensical. If the Court believes that FISA violates the Fourth Amendment, it does not "usurp" the powers of the White House or Congress to so rule; the Court would be fulfilling its basic constitutional role by protecting individuals from arbitrary government action prohibited by the Fourth Amendment. If it believes that FISA is unconstitutional, it does not "ursurp" the role of the other branches in any possible sense to say so. Either way, the Court should decide this case on the merits.

In 1968, when Justice John Marshall Harlan advocated a standing standard that would make it nearly impossible to bring constitutional challenges under the Establishment Clause, Justice William Douglas argued that his opinion "reflects the British, not the American, tradition of constitutionalism. We have a written Constitution; and it is full of "thou shalt nots" directed at Congress and the President as well as at the courts." Citizens, Douglas noted, have an important role to play as "private attorneys-general," mobilizing against violations of their constitutional rights. Alito's majority opinion repeats the errors of Harlan's dissent. In challenging FISA on Fourth Amendment grounds, the plaintiffs in this case are acting as part of a noble tradition, and the courts should properly err in favor of hearing serious constitutional arguments. And, certainly, the government should not be able to insulate its programs from constitutional challenges by keeping its actions secret from the public. The fact that journalists and lawyers don't know if they're being wiretapped without a warrant is the problem, not a reason that the government should not face constitutional scrutiny.

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