After the 9-11 terrorist attacks the Bush administration put into place a system of warrantless surveillance of international telephone calls and emails by the National Security Administration. After it was leaked to the New York Times and civil rights groups complained, in 2008, Congress amended the Foreign Intelligence Surveillance Act (FICA) to authorize the executive branch to conduct this surveillance. Before the court this term was a challenge to the constitutionality of this legislation brought by journalists, lawyers, and human rights activists.
Last month the Supreme Court issued its decision. So, is the government spying authorized by the Foreign International Surveillance Act legal or illegal, constitutional or unconstitutional; is the government right or wrong? Nobody knows. Why?
In a decision that leaves the government unaccountable, the courts impotent, and constitutional rights unredressed, the Supreme Court decided by a 5-4 majority that parties lacked standing to bring the lawsuit.
Standing is a doctrine that ensures that the parties have a stake in the outcome of a lawsuit. To be sure, I cannot bring a lawsuit because I am nosy and I see that your fence extends over your neighbor’s lawn. Unfortunately, however, the test of standing has been beefed up over the years by conservative justices so that it now serves as an absurd procedural barrier to injured parties having their cases heard.
Take this case, Clapper v. Amnesty International. The government was engaged in warrantless interception of international email and telephone calls. Only the government itself could possibly know whose communications it viewed. But the Supreme Court required the plaintiffs, at the outset of the lawsuit, to demonstrate that they were the subjects of surveillance. This is an impossible burden, one that no person challenging FICA would ever be able to shoulder. The most the individual plaintiffs could show, and should be asked to show, is that their communications were vulnerable to government interception.
This case is an example of procedural rules being used to thwart access to justice. If no one can establish standing to bring a lawsuit, then illegal activity, whether unconstitutional wiretapping, or corporate pollution, goes unchallenged.