Supreme Court blocks challenge to anti-terrorism law

Richard Wolf, USA TODAY | USATODAY

WASHINGTON -- One of the most controversial anti-terrorism laws passed in the wake of the Sept. 11, 2001, attacks may be beyond normal judicial review, the U.S. Supreme Court ruled Tuesday.

In a 5-4 decision, the court's conservative justices ruled that lawyers, journalists, human rights activists and others lacked standing to challenge a law passed in 2008 that increases the government's ability to intercept international communications.

The plaintiffs had contended that even the potential of government snooping – which, they said, would violate the Fourth Amendment – was forcing them to change the way they communicate with clients and sources.

The question before the high court wasn't whether the law itself, passed near the end of the Bush administration, was constitutional. It was whether those challenging it even had the ability to find out.

At issue was whether the people whose communications are intercepted can sue because of the fear – or reality – of having been heard. The plaintiffs argued that even the likelihood of such eavesdropping forces them to change their way of doing business, which in turn can hinder their performance.

"This theory of future injury is too speculative," Justice Samuel Alito said in announcing the decision, calling it "hypothetical future harm."

The government, which had lost the most recent lower court case, argued successfully that the lawyers still can get their claims heard in the top-secret Foreign Intelligence Surveillance Court.

Alito was joined by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.

Justice Stephen Breyer dissented, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Breyer wrote that the harm is not speculative.

"It is as likely to take place as are most future events that common-sense inference and ordinary knowledge of human nature tell us will happen," he said.

Advocacy groups that had supported those seeking to challenge the law warned that the decision forever may protect it from review in open court. The Foreign Intelligence Surveillance Court meets in secret and doesn't always publish its decisions.

"This ruling insulates the statute from meaningful judicial review and leaves Americans' privacy rights to the mercy of the political branches," said Jameel Jaffer, deputy legal director for the American Civil Liberties Union, who argued the case in court. "This theory is foreign to the Constitution and inconsistent with fundamental democratic values."