While most of the federal government was shut down in response to Hurricane Sandy, the Roberts Court was considering a case that tests the limits of the federal government’s surveillance powers in a post-9/11 world. Or at least promises to.
The case stems from the 2008 FISA Amendments Act, legislation that retroactively legalized the Bush administration’s warrantless spying program. It was a massive blow to civil liberties and authorized warrantless surveillance aimed at targets abroad and their contacts–including contact where one of the target’s points of contact is within the United States. Essentially this means the US government can, and likely does, spy on American citizens without a warrant or probable cause.
Prior to the FISA Amendments Act surveillance in cases targeting foreign agents had to be approved by a special FISA court, in part to protect against this kind of roving, warrantless and likely baseless surveillance. That is no longer the case.
Troubled by these developments a group of journalists, lawyers and human rights activists challenged the law and it is that challenge that is finally before the Court now. The issue before the Supreme Court is not whether or not this kind of spying on American citizens is okay. Instead, the Court is set to answer whether the lawyers, activists and journalists can bring a claim to begin with.
It’s the government’s position that the plaintiffs in this case don’t have standing. That is, the government claims these plaintiffs can’t prove they will be harmed by the law, in part because who the government spies on is, by definition, secret.
In a nutshell the government’s case is that the plaintiffs can’t prove they were illegally spied upon because who the government spies on is classified by law.
The state’s secret doctrine has been used to justify failing to disclose warrantless domestic wiretaps, extraordinary rendition for torture and whether or not Americans have been placed on “kill lists.” In a post-9/11 world “state’s secrets” means basically whatever the executive branch wants it to mean, and the federal judiciary has largely played along.
Will they continue to do so? It’s hard to say. The Roberts Court has continued the legacy of its predecessor and has taken nearly every opportunity to cut off access to the federal courts that have been presented in previous cases, so there’s no reason to think they would automatically be inclined to give the ACLU and human rights advocates another day in court. And even if they do and the plaintiffs win there is even less a guarantee their challenges to the law will succeed.
Welcome to the new normal.
Photo from ConvenienceStoreGourmet via flickr.