Victory for paradox


The U.S. Supreme Court protects citizens when the legislative or executive branch oversteps its authority. The high court abrogated that duty last week when it dismissed a challenge to the government’s ability to spy on Americans when they email or phone people overseas.

After 9/11, the National Security Agency got authority to read international emails and listen in on international telephone calls made by Americans, without a warrant. The secret surveillance was exposed in 2005; Congress responded in 2008 by amending the Foreign Intelligence Surveillance Act to give legal cover to what the George W. Bush administration had been doing.

Lawyers, journalists, and human-rights advocates, who as part of their work sometimes have contact with people the government might consider dangerous, sued. They claimed the surveillance infringed on constitutionally protected free speech and privacy rights.

In a 5-4 decision, the high court ruled that the plaintiffs can’t sue because they can’t prove that their emails and telephone calls have been spied on.

It’s a paradox: Americans can’t challenge the law unless they can prove that it has been used to target them. And they can’t prove they’ve been spied on, because the surveillance program is secret. The only recourse they have is to trust that their government won’t abuse the secret power.

But the American government frequently has demonstrated a willingness to limit individual rights, especially when national security appears to be at stake. The Alien and Sedition Acts, passed by Congress in 1798; Abraham Lincoln’s suspension of habeas corpus during the Civil War, and the detention of Japanese-Americans during World War II are three of the better-known examples.

Trust also would be misplaced in this case, according to Justice Stephen Breyer. “We need only assume that the government is doing its job [to find out about, and combat, terrorism],” he wrote in the minority dissent, “in order to conclude that there is a high probability that the government will intercept at least some electronic communication to which at least some of the plaintiffs are parties.”

There may be times when it is necessary to monitor groups of people rather than identify individuals. But it should always be subject to independent judicial review. That’s what checks and balances are all about.

Last December, Congress renewed the surveillance law for five years. Lawmakers could have required federal officials to provide details about how often the emails and telephone calls of Americans are spied on. They chose not to do so. Now the Supreme Court has abandoned its watchdog role as well.

With the challenge bar set impossibly high, the possibility of review that might lead to constraints on the surveillance law has been removed. Without limits, law becomes meaningless.

So with its decision, the Supreme Court has effectively placed the federal secret-surveillance program outside the law. And that puts the basic rights of every American in jeopardy.