FISA Supreme Court Decision Makes a Mockery Of Civil Liberties

In a 5-4 decision the United States Supreme Court on Tuesday blocked a challenge to the Foreign Intelligence Surveillance Act. Specifically at issue was the FISA Amendments Act of 2008, which was reenacted by Congress in December. The act established the existence of secret courts capable of issuing warrants authorizing law enforcement officials to monitor communications between individuals inside the U.S. corresponding with individuals overseas. Application of these warrants has increased markedly since the September 11, 2001 attacks.  

Because the FISA courts are secret, and because the Obama and previously Bush administrations have kept a tight lid on the program, the individuals and correspondence that have been subjected to surveillance are unknown to the general public. It was on this basis which the court ruled that the plaintiffs had no standing. Writing for the majority, Justice Samuel Alito said, "It is no surprise that respondents fail to offer any evidence that their communications have been monitored," and that "failure that substantially undermines their standing theory."

In other words, because the government refuses to disclose anything about the program — other than the number of warrant applications — no one in the general public knows anything about it. And because no one knows anything about it, no one knows whose communications are being monitored. And because no one knows whose communications are being monitored, no one could possibly have standing since no one can prove their constitutional rights have been violated. 

Some media outlets are calling it a catch-22, but sick joke is more like it. In effect, the government is being rewarded for its total lack of transparency. This decision sends the message that if the government wants to be immune from lawsuits that seek to recoup lost civil liberties or lawsuits that seek to gain information about certain programs, it should shield the public from any information that could give anyone standing in a potential case. 

The suit was filed by a group of organizations led by the American Civil Liberties Union.