In Clapper v. Amnesty International USA, the Supreme Court heard oral argument not on the merits of the case, which challenges whether the federal government can constitutionally conduct warrantless, dragnet surveillance on the international phone calls and emails of people living in the United States, but rather whether Americans had the right to challenge this law in the courts. Four months later, the Supreme Court has decided that the answer is no.
In his opinion for the majority, Justice Alito asserts that the plaintiffs (Amnesty International USA, the American Civil Liberties Union, and a coalition of international journalists and lawyers) do not have the proper standing to sue because they cannot prove that they are being wiretapped. Though the plaintiffs note that they have taken to traveling directly to their clients to avoid making communications that could be surveilled, Alito wrote "they cannot manufacture standing by incurring costs in anticipation of nonimminent harms."
Jameel Jaffer, the Director for the ACLU’s Center for Democracy, said the decision "insulates the statute from meaningful judicial review and leaves Americans’ privacy rights to the mercy of the political branches." Alito's opinion argues that the Court's standing doctrine, upon which the dismissal of the case relies, "serves to prevent the judicial process from being used to usurp the powers of the political branches."
Due to increased government secrecy and growing judicial doctrines limiting access to the courts, private citizens and civil liberties groups are finding it close to impossible to challenge the federal government’s antiterrorism policies through litigation. The very secrecy of the decision making behind the warrantless wiretapping program that the plaintiffs challenge is what makes the program unchallengeable, according to the Court.
"More than a decade after 9/11," Jaffer said, "We still have no judicial ruling on the lawfulness of torture, of extraordinary rendition, of targeted killings or of the warrantless wiretapping program. These programs were all contested in the public sphere, but they have not been contested in the courts."