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Supreme Court throws out challenge to U.S. wiretapping program

February 26, 2013|By David G. Savage
  • The U.S. Supreme Court building in Washington.
The U.S. Supreme Court building in Washington. (Mark Wilson / Getty Images )

WASHINGTON -- The Supreme Court on Tuesday threw out a broad lawsuit that challenged the constitutionality of the government’s program of secret wiretapping of international phone calls and emails, ruling that none of the plaintiffs has “standing” to sue because they cannot prove their messages were intercepted.

The 5-4 ruling is the latest of many that has shielded the government’s anti-terrorism programs from being challenged in court.

Over the past decade, the justices have repeatedly killed or quietly ended lawsuits that sought to expose or contest anti-terrorism programs, including secret surveillance, mass arrests of immigrants from the Mideast and drone strikes that killed American citizens abroad.

The challenges to the programs of secret surveillance floundered from the start because no one can show they were targeted or that their calls were intercepted. Civil libertarians have described this as a Catch-22, because the government will not reveal information on whose calls and messages have been intercepted.

Justice Samuel A. Alito Jr., speaking for the court’s conservative majority, said the latest lawsuit fails because it was based on “speculation” by lawyers, journalists and activists who feared their messages were being intercepted by the National Security Agency.

The plaintiffs argued that because they had clients abroad and had regular dealings with them, their messages were probably intercepted by the NSA. In their suit, they argued this policy of intercepting private calls violated the 4th Amendment’s ban on unreasonable searches.

In dissent Tuesday, the court's four liberal justices said the lawsuit should have gone forward because the plaintiffs had to alter their work practices to avoid having their confidential calls overheard. “In my view, this harm is not 'speculative',” said Justice Stephen G. Breyer.

The expanded wiretapping of international electronic traffic began secretly under President George W. Bush, but the policy has since been ratified by Congress and supported by the Obama administration.

The plaintiffs in the latest lawsuit had won a preliminary victory from the U.S. 2nd Circuit Court of Appeals in New York, which said they had standing to sue because of the likelihood their calls were being intercepted.

But the Obama administration appealed last year, and the high court reversed the lower court Tuesday in the case of Clapper vs. Amnesty International.


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