Posted by on October 25, 2012 in Blog

On October 29th the Supreme Court will begin its second session of 2012. While it has received virtually no media attention compared to other cases on the docket for this session, the very first case the Supreme Court will hear bears significant implications for the future of our constitutional protections. Clapper v. Amnesty International will address the critical issue of standing when it comes to challenging the ability of the government to perform warrantless wiretapping on its citizens. While it may seem like a minor step in the battle against the abuses of FISA, the outcome of this case could have profound implications for future civil liberties cases.

Clapper v. Amnesty International is a challenge to the 2008 FISA Amendments Act (FAA), which retroactively made legal the surveillance practices of the Bush Administration. The FAA, which was renewed again last month, amended the Foreign Intelligence Surveillance Act to allow for broad surveillance of American citizens’ telephone and electronic communications without any suspicion of wrongdoing. The case was filed by a group of human rights activists and media figures who argued, given the nature of their professional work, that they had a reasonable fear that they were subject to such surveillance and had to take costly steps to protect the confidentiality of their communications. The fact that the plaintiffs cannot prove that they are the subjects of surveillance has led to the battle over standing that has taken the case all the way to the Supreme Court.

The reason the plaintiffs cannot prove that they have been spied on is because the government treats all information about the extent of their domestic surveillance as a state secret. All efforts, even those undertaken by elected officials, to gain information about domestic surveillance under FISA have been met with Kafkaesque resistance. Furthermore, all efforts to challenge the legality and constitutionality of the Bush Administration’s post 9/11 terrorist surveillance program through the courts have failed for lack of standing. Thus, those seeking to challenge the constitutionality of warrantless wiretapping have heretofore been caught in a catch-22. The overwhelming power of the state secrets privilege makes it nearly impossible for any U.S. citizen to show that he or she was the subject of surveillance, while the inability to prove he or she has been spied on prevents any citizen from having standing to challenge the program. The 2nd Circuit’s decision in favor of the plaintiffs in Clapper was a significant breakthrough, as it is the first federal court ruling that concluded that injury had occurred despite the plaintiffs being unable to prove they had been subject to surveillance.

The stakes in Clapper v. Amnesty International are much higher than the issue of standing in this individual case. The Supreme Court will likely decide whether the judiciary’s role as a check on unconstitutional actions by the other branches can be nullified by the privilege of state secrecy. Many of the most important civil liberties cases of the past few years have been stonewalled in court when the state secrets privilege has been evoked. Much is needed in the area of state secrets reform, but granting standing to challenge the constitutionality of practices such as warrantless wiretapping would be an important first step. The Supreme Court’s decision will also set a vital precedent for a number of other civil liberties cases currently making their way through the court system. The challenge to the indefinite detention provisions of the National Defense Authorization Act is going through a nearly identical standing battle to Clapper. Thus, the decision of the court on standing to challenge warrantless wiretapping may well determine whether citizens can legally challenge indefinite detention as well. At the heart of Clapper v. Amnesty International, and all the other cases it will affect, is a larger battle against a disturbing trend in the federal government: that with the mere assertion that it is acting in the interest of national security, the government is seemingly immune to checks on its power. 

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