Challenge to FISA Dismissed on Standing Grounds

Challenge to FISA Dismissed on Standing Grounds March 4, 2013

In an entirely unsurprising but still appalling decision, the Supreme Court ruled this week that a group of lawyers, journalists and human rights activists who challenged the FISA extensions don’t have standing to bring that challenge. The case was thus dismissed, diminishing yet again any chance that anyone could ever challenge the constitutionality of the government’s actions in the war on terror.

The case is Clapper v Amnesty International. You can read the full ruling here and Lyle Denniston’s analysis of the ruling here. It was a 5-4 split along predictable lines, with Alito writing the majority opinion that was joined by Roberts, Scalia, Thomas and Kennedy, and Breyer writing the dissent on behalf of Ginsburg, Kagan and Sotomayor. Alito denies in his ruling that the majority’s denial of standing in this case leaves the FISA law essentially immune to legal challenge, but it’s hard to imagine how anyone could ever show standing under the court’s doctrines. As Lyle Denniston points out:

Pushing a highly secret government program of global wiretapping a broad step away from ever having its constitutionality judged in an open court, the Supreme Court on Tuesday shut down a lawsuit by lawyers, journalists, and others who fear that their electronic exchanges with overseas contacts are being monitored by federal listeners.

The decision, in the case of Clapper v. Amnesty International USA (docket 11-1025), split the Court five to four, with the majority reaching back to a 1923 decision in a natural gas storage case to find a restrictive rule against allowing federal lawsuits to go forward. That rule, the dissenting Justices complained, had never before been used by the Court to block a case on the theory that it did not present a live “case or controversy.”…

The decision fit into two ongoing patterns established by the modern Court: a narrowing of the scope of the right to sue in federal court as a general proposition, and a stream of decisions insulating highly secret government war programs from judicial review in the regular federal court system.

And therein lies the problem. The government has long played a highly dishonest game with standing in such cases. The program is top secret, so you have no way of ever proving you were subject to such surveillance, and if you can’t prove that, you don’t have standing. Heads they win, tails you lose. Julian Sanchez underscores this fact:

The FAA permits the government to secretly vacuum up Americans’ international communications on a massive scale, without any individualized suspicion—and at least some of that surveillance has already been determined to have violated the constitution by a secret intelligence court. Yet today’s majority has all but guaranteed no court will be able to review the constitutionality of the law as a whole by imposing a perverse Catch-22: Even citizens at the highest risk of being wiretapped may not bring a challenge without proof they’re in the government’s vast database. The only problem is the government is never required to reveal who has been spied on.

In essence, the Court has said that even if the law is unconstitutional, even if it has violated the Fourth Amendment rights of thousands of Americans, there’s no realistic way to get a court to say so.

Precisely when secrecy shields the government from public political accountability, the Clapper ruling announces, the Constitution is powerless to protect us as well.

Exactly right. If there’s no way anyone can ever have standing to challenge the legality of the government’s actions, there simply are no meaningful limits on what the government can do. The 4th Amendment is thus rendered a dead letter. And bear in mind, those of you who still cheer relentlessly for Obama, that this is exactly what he wanted, not only in this case but in every single legal challenge to the government’s actions in the war on terror. He has, despite repeated promises before taking office, worked relentlessly to make sure that the the courts never issue a ruling on the merits in any case that could limit his authority — and the authority of every president after him — to spy, arrest, detain, torture or kill.

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  • psweet

    Um, did Sanchez really mean to refer to the FAA?

  • This is why I couldn’t vote for Obama a second time. He takes far too much pleasure in abusing power.

    Not that Romney would have been different in that regard.

  • baal

    FAA = FISA Amendments Act in this context. TLDR version: Secret court with only the prosecutor showing up was too much of a burden so let’s just do whatever so long as the office of the President agrees. By office, we mean some flunky churning out memos.

    This isn’t the rule of law. It is disgusting.

  • What part of the social contract hasn’t been broken?

  • eric

    Good question to ask any of the majority judges on the lecture circuit: who (do you think) does have standing to challenge this law? Though I wouldn’t bother asking Scalia, he’d probably just respond with curses and epithets.

  • @eric #5 – Based on this ruling and similar other ones, the clear fact is that NO ONE has standing. The law is unassailable, and the Court is perfectly happy to wring its hands and shed crocodile tears over this sad fact.

  • abb3w

    Hmm. I wonder if this is the fatal flaw in the US Constitution that Kurt Gödel claimed to have found. The question of whether or not something is an Article III controversy is a question of law and fact… under the control of the Article III judiciary. If the Supreme Court refuses to admit something is a judicial controversy, there can be no challenge in the courts.

    Possibly not Gödel’s weakness, but it has something of the flavor of his style.

    Such a judicial failure can only proceed to appeal in the larger arena of politics, where at present there also seems little hope of a satisfactory resolution; yet there also seems little prospect of better result by advancing to examine the final argument of kings.

    Though I understand there’s still one more case the SCOTUS is facing before the judicial safety valve gets welded shut?

  • eric

    Such a judicial failure can only proceed to appeal in the larger arena of politics

    I can think of a more theatrical solution. Take Scalia and Roberts into custody. Don’t give a reason, don’t give them a trial, just disappear them (temporarily) and cite FAA. Propose liberal replacements, and see how long the judges decide this is an issue in which nobody has standing. I’d give it 1 day for an 7-0 reversal. I bet Scalia won’t be complaining about THAT majority opinion being about entitlement.

  • Ichthyic


    so if NOBODY in that huge list of very diverse claimants had standing… did SCOTUS happen to mention who WOULD? or are we just supposed to guess?

  • Ichthyic

    …sorry missed eric having already asked this at 5.

  • abb3w

    @8, eric

    I can think of a more theatrical solution. Take Scalia and Roberts into custody.

    Doesn’t work; FISA and the FISA Amendments Act is only for search, not for seizure of persons. The SCOTUS could dismiss the argument as irrelevant to the case, without setting more general precedent. Worse, they might argue the seizure was unlawful because of their particular privileged position as justices; detaining their wives would be more effective.

    Still guaranteed to get impeachment, and unlikely to have long-term practical impact.