The U.S. Supreme Court yesterday made it virtually impossible for anyone to challenge the constitutionality of a law that allows the federal government to secretly monitor the phone calls and email of its citizens inside the United States while targeting suspected spies or terrorists abroad. As a result, the courts may never rule on whether such surveillance violates the U.S. Constitution.
The fourth amendment guarantees us the right to be free from unreasonable search and seizure. When that right has been violated, we must be able to challenge the intrusion. Government eavesdropping shouldn't be beyond judicial review.
This type of monitoring was broadened in 2008 when Congress amended the Foreign Intelligence Surveillance Act. With an order from a secret court, officials can monitor calls and email of a suspected foreign operative outside the United States for a year. Anyone inside the borders who has contact with the suspect may have those communications monitored.
A group of lawyers, some representing suspected terrorists detained at Guantánamo Bay, Cuba, filed suit along with journalists. In doing their jobs, all have contact with people abroad whom the government might consider suspicious. They argued that makes it likely their communications are monitored, forcing them to travel overseas to have unmonitored contacts. In a 5-4 ruling, the justices dismissed their suit. It ruled that without proof that the government had actually monitored their communications, they had no standing to sue because they couldn't show they'd suffered any actual harm.
But only government officials know who's been monitored -- and they aren't saying. As long as they refuse to disclose that key information, no one will have standing to challenge the snooping. Congress should amend the statute to ensure there is a realistic way to challenge the law in court. Rights that can't be enforced are no rights at all.