NPR logo
Supreme Court Makes It Harder To Challenge Foreign Intelligence Surveillance Act
  • Download
  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript
Supreme Court Makes It Harder To Challenge Foreign Intelligence Surveillance Act



Now, to a ruling issued today by the Supreme Court. The decision makes it practically impossible for American citizens to challenge the constitutionality of a large-scale electronic surveillance program. The Foreign Intelligence Surveillance Act authorizes the monitoring of phone calls and emails to and from the U.S.

Today, the court ruled 5-to-4 that people challenging the law could not show with near certainty that they had been harmed by the program, and therefore they could not sue. NPR legal affairs correspondent Nina Totenberg explains.

NINA TOTENBERG, BYLINE: The Foreign Intelligence Surveillance Act, known as FISA, was amended in 2008 to do away with the previous requirement that the government obtain a warrant from a special intelligence court when conducting electronic surveillance of individuals abroad. Instead, the government can now monitor large groups of people, and the Foreign Intelligence Surveillance Court has very limited powers of supervision.

The FISA expansion was challenged in court by lawyers for Guantanamo detainees, human rights groups like Amnesty International, and journalists. All routinely have conversations with people overseas, conversations that they say almost certainly have been monitored by the government under FISA. They went to court contending that the law is unconstitutional because it gives the government authority to conduct what they call dragnet searches. And they said they've been forced to spend money on foreign travel because their electronic communications would likely be monitored by the government.

The Supreme Court, however, blocked the suit from going forward and, in so doing, all but ensured that there will be no further challenge to the law.

The five-men majority said that those challenging the law had not shown sufficient certainty that they've been monitored. Without such certainty, the court said there was no legal standing to sue. Writing for the court majority, Justice Samuel Alito said that the challengers' claims were based on nothing more than a highly speculative fear that their communications would be intercepted. Indeed, Alito said, even if the challengers could show that their communications had been intercepted, they could not show that the government was acting under FISA as opposed to some other federal surveillance law.

The decision mostly likely means that nobody will ever be able to bring a challenge to FISA. As Elizabeth Wydra of the Constitution Accountability Center puts it...

ELIZABETH WYDRA: It's a catch-22. It's a secret program that is hard to get information about and yet the court is seeming to require plaintiffs to get that absolute certainty before they can challenge the constitutionality of the surveillance.

TOTENBERG: Because of the majority opinion's broad language limiting the right to go to court in this case, some constitutional law experts worried about the courtroom door being similarly closed in cases that do not involve national security, lawsuits involving the environment, property rights, et cetera. And indeed, the four dissenters in today's case - led by Justice Steven Breyer - cited dozens of cases in which the court in the past has allowed lawsuits based on reasonable or high probability that the plaintiff will be harmed. How could it be otherwise, asked Breyer, noting that a court would certainly not block a lawsuit brought by homeowners worried that construction of a new dam would flood their property even if the risk of flood was 60 percent, not 90 percent.

So, could the language of today's opinion bleed over to such non-national security areas? Environmental protection advocates were particularly concerned, but most experts were not. Harvard law professor Richard Fallon knows that the doctrine of standing - who has the right to sue - can be elastic. The court sometimes seems to change the rules depending on who it wants to let in the courthouse door. And as for today's ruling...

RICHARD FALLON: I think it's very significant for the FISA statute. And I think it's probably not terribly significant for other standing cases. But the Supreme Court has now put on the books some very restrictive general language about standing, and it's impossible wholly to rule out the possibility that it will turn out to be a more generally significant opinion.

TOTENBERG: Todd Hinnen, who served in high-level antiterrorism positions in the Bush and Obama administrations, is more categorical.

TODD HINNEN: No. I think the court's decision today is limited to the facts of this case and, potentially, other cases involving national security authorities.

TOTENBERG: Nina Totenberg, NPR News, Washington.

Copyright © 2013 NPR. All rights reserved. Visit our website terms of use and permissions pages at for further information.

NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.



Please keep your community civil. All comments must follow the Community rules and terms of use, and will be moderated prior to posting. NPR reserves the right to use the comments we receive, in whole or in part, and to use the commenter's name and location, in any medium. See also the Terms of Use, Privacy Policy and Community FAQ.