NEW YORK -- The Supreme Court's Tuesday ruling in a case about warrantless wiretapping, Clapper v. Amnesty International USA, could have larger consequences for accountability and post-9/11 counterterrorism measures, including a lawsuit over the government's power to indefinitely detain terrorist suspects.
The court's 5-4 decision held that the journalists and human rights advocates challenging the warrantless wiretapping program first set up under President George W. Bush's administration did not have standing. Justice Samuel Alito wrote that the parties' fear of being surveilled when the U.S. government targets foreign terrorists was "highly speculative."
The court's decision was a serious blow to plaintiffs in the case, like journalist Chris Hedges, who worried that their calls and emails abroad were being picked up by government surveillance. Civil liberties advocates seem equally worried that the ruling signals a large retrenchment of the judiciary's role as a constitutional check on the executive branch.
"The standing doctrine has always been a bit of a Rorschach test for how you view the role of the judiciary," said Alex Abdo, a staff attorney for the American Civil Liberties Union who helped argue the lawsuit for Amnesty International. "Five justices today outlined a very cabined view of the role of the judiciary -- that role being not one at all when the political branches have decided to authorize this massive system of surveillance."
Some observers have argued since the beginning of Chief Justice John Roberts's tenure that the justice has closed the courthouse doors on "impact litigation" like the Clapper case. Legal advocates fret that the Supreme Court has handed the government a virtual "get out of jail free" card for national security statutes that are written, like the 2008 wiretapping law was, with an eye toward secrecy.
"It's going to have much broader ramifications ... in terms of the ability of people to challenge the constitutionality of secret government programs," said Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program. "The message seems to be: as long as you can keep what you're doing secret, you don't have to worry about [judicial] review, because no one can establish standing."
Hedges is also the lead named plaintiff in Hedges v. Obama, a suit challenging the constitutionality of a law that authorizes the military to indefinitely detain suspected terrorists. That case could hinge on a similar legal question of standing.
In a panel hearing of the Second Circuit Court of Appeals on Feb. 6, Judge Raymond Lohier asked whether he should wait on a Supreme Court ruling in the Clapper case to decide the Hedges lawsuit. An Obama administration lawyer responded favorably.
Steve Vladeck, a professor at American University's Washington College of Law, wrote in May that the standing issue in the Hedges lawsuit was also at "the heart of" Clapper. Hedges himself wrote earlier this month that a win in the wiretapping lawsuit would strengthen his hand in the indefinite detention suit.
The decision in Clapper, said Goitein, was "not written in terms that would narrow its effect" to that specific case. But Carl Mayer, a lead lawyer in the indefinite detention lawsuit, said he thought the impact of the Supreme Court ruling would be limited because Clapper and Hedges are "very distinct" cases.
"The Hedges case is a much greater harm: the possibility of detention at the hands of the military, potentially forever," Mayer wrote in an email Tuesday. "The type of harm alleged in the wiretapping case was indirect; in Hedges the threat is directly to journalists because they are the ones who could be rounded up by the military, whereas in the wiretapping case decided today, the people under surveillance are not the journalists but the people they report on, presumably."
Whatever the outcome for the indefinite detention case, the Tuesday decision is likely bad news for another challenge to the warrantless wiretapping program, CCR v. Obama. The Center for Constitutional Rights, the plaintiff in that case, lost a federal district court case over a similar standing issue in 2011. An appeal had been put on hold until the Supreme Court could render a decision in Clapper.
CCR said in a release on Tuesday that the court's ruling, "while narrow, puts up unnecessary and technical hurdles to challenging the legality of this controversial program."
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