By Nina Totenberg

A sharply divided Supreme Court has made it practically impossible for American citizens to challenge the constitutionality of the Foreign Intelligence Surveillance Act.

FISA is the federal law that authorizes large-scale electronic surveillance of phone calls and emails to and from targets abroad and individuals in the United States. By a 5-4 vote along ideological lines, the court said that human rights advocates, journalists and lawyers for detainees could not show with near certainty that they had been or will be harmed by the program and, therefore, they could not challenge the statute in court.

FISA was amended in 2008 to do away with the previous requirement that the government obtain a warrant from a special intelligence court when conducting electronic surveillance of individuals abroad. Instead, the government can now monitor large groups of people with one single request, and the Foreign Intelligence Surveillance Court, which was originally established to provide strict oversight of surveillance requests, now has very limited powers of supervision.

Background

The FISA expansion was challenged in court by lawyers for Guantanamo detainees, human rights groups such as Amnesty International and journalists. The challengers routinely have conversations with people overseas — conversations that they say almost certainly have been monitored by the government under FISA. They went to court, contending that the law is unconstitutional because it gives the government authority to conduct what they call “dragnet searches.” And they said that as a result of FISA, they have been forced to spend money on foreign travel to protect the confidentiality of communications.

The Supreme Court, however, blocked the suit from going forward, and in so doing, all but ensured that there will be no further challenge to the law.

The five-man court majority said that those challenging the law had not shown with sufficient certainty that they had been monitored, and the court said that without such certainty, there was no legal standing, no right to sue.

Writing for the court majority, Justice Samuel Alito said that the challengers’ claims were based on nothing more than a “highly speculative fear” that their communications would be intercepted. Indeed, Alito said, even if the challengers could show that their communications had been intercepted, they could not show that the government was acting under FISA, as opposed to some other federal surveillance law.

‘A Catch-22’

The decision most likely means that nobody will ever be able to bring a challenge to FISA.

“It’s a Catch-22,” says Elizabeth Wydra of the Constitutional Accountability Center. “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.”

Because of the majority opinion’s broad language limiting the right to go to court in this case, some constitutional law experts worry about the courtroom door being similarly closed in cases that do not involve national security — for example, in cases involving the environment or property rights. And indeed on Tuesday, the four Supreme Court dissenters, led by Justice Stephen Breyer, cited dozens of cases in which the court in the past has allowed lawsuits based on a reasonable or high probability that the plaintiff will be harmed by some activity.

“How could it be otherwise,” asked Breyer, noting that a court certainly would not block a lawsuit brought by homeowners worried that construction of a dam would flood their property — even if the risk of flood was 60 percent and not 90 percent.

Concern Over Scope Of Decision

The dissenters’ litany of citations to a more flexible approach as to who can sue, plus the restrictive language of the majority opinion, prompted the concern in some quarters that the logic of the opinion could bleed over to non-national security areas. Environmental protection advocates were particularly worried, but constitutional law scholars, for the most part, saw the decision as more limited.

Harvard law professor Richard Fallon noted that the doctrine of standing — who has the right to sue — can be elastic. Fallon saw Tuesday’s ruling as “very significant” for the FISA statute but “probably not terribly significant for other standing cases.”

He cautioned, however, that “the Supreme Court has now put on the books some very restrictive general language about standing, and it’s impossible wholly to rule out the possibility that it will turn out to be a generally more significant opinion.”

Todd Hinnen, who served in high-level anti-terrorism positions in the Bush and Obama administrations, however, saw the FISA decision as “limited to the facts of this case and potentially other cases involving national security authorities.” The court, he said, “essentially held that where plaintiffs are forced by the secret nature of government activity to speculate as to whether they’ve been directly harmed by that activity, they did not have standing. It’s a holding that, by its terms, is limited to the kinds of national security activities the court was addressing in this specific case.”