The U.S. Supreme Court ruled Tuesday that human rights groups do not have standing to sue the government over its warrantless wiretapping program because they have no proof that the wiretapping has harmed them.
The vote was split 5-4 along partisan lines, with the conservative majority supporting the Obama administration’s argument that the FISA Amendments Act was above reproach in this case because the harms were “speculative,” and not “actual.”
Justice Stephen Breyer, writing in the dissent (PDF), explained: “In my view, this harm is not ‘speculative.’ Indeed it is as likely to take place as 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.”
Roving, warrantless wiretaps were authorized by President George W. Bush after the attacks of Sept. 11, 2001, turning the National Security Agency into the nation’s spy machine. Whistleblowers allege that every electronic communication coming into and out of the U.S. is automatically monitored and flagged for keywords, but the NSA always denies that it operates within the U.S.
“It’s a disturbing decision,” American Civil Liberties Union Deputy Legal Director Jameel Jaffer said in a statement. “The FISA Amendments Act is a sweeping surveillance statute with far-reaching implications for Americans’ privacy. This ruling insulates the statute from meaningful judicial review and leaves Americans’ privacy rights to the mercy of the political branches.”
The Center for Constitutional Rights was similarly dismayed. “The Court’s decision, while narrow, puts up unnecessary and technical hurdles to challenging the legality of this controversial program,” a prepared statement said. “The opinion of the four dissenting justices reflects a better understanding of the judiciary’s role in questioning and checking the legality of Executive Branch surveillance practices.”
Then-Senator Barack Obama initially opposed the FISA Amendments Act, but ultimately voted for it in 2008, which granted immunity to the outgoing administration and telecommunications companies that aided their legally questionable spying operations. He signed a five-year extension to that act as president at the end of 2012.