Caught In A Dragnet-22

In a 5-4 decision on Tuesday, the Supreme Court ruled in Clapper v. Amnesty International that citizens cannot sue the federal government over its secretive warrantless wiretapping program. Julian Sanchez summarizes the Court’s reasoning:

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 [the Alito-led] 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.

Scott Lemieux adds:

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.

Marcy Wheeler further breaks down the ruling here. Greenwald fumes:

The supreme irony here is that when Obama supported this 2008 eavesdropping law, it sparked intense anger among his own supporters as he ran for president. To placate that anger, he vowed that, once in power, he would rein in the excesses of this law that he oh-so-reluctantly supported. He has done exactly the opposite. He just succeeded in pressuring the Congress, with heavy GOP support, to extend this eavesdroppiong law for five years without a single reform. And now his Justice Department has used the five right-wing justices to completely immunize the law from judicial review …

Cindy Cohn and Trevor Timm find a glimmer of hope:

[A]s disappointing as the Clapper decision is, the good news is the decision likely won’t adversely affect our Jewel v. NSA lawsuit, which we argued in district court in December of 2012. Indeed, the Clapper decision makes the Jewel case one of the last remaining hopes for a court ruling on the legality of the warrantless surveillance of Americans, now conducted for over a decade.

The Ninth Circuit has already ruled that the Jewel plaintiffs have standing under settled law. The court’s decision is based on solid ground because we have presented the court with evidence that dragnet warrantless surveillance has already occurred, through testimony and documents from AT&T and NSA whistleblowers. In fact, the court specifically differentiated the two cases in its Jewel opinion: “Jewel has much stronger allegations of concrete and particularized injury than did the plaintiffs in Amnesty International. Whereas they anticipated or projected future government conduct, Jewel’s complaint alleges past incidents of actual government interception of her electronic communications.”