Supreme Court dismisses wiretapping challenge, protects feds from judicial review

By   /   February 27, 2013  /   No Comments

By Eric Boehm | PA Independent

HARRISBURG – The federal government can listen to electronic communication between Americans and individuals living in other nations without obtaining a warrant first.

And the U.S. Supreme Court is apparently just fine with that.

The court dismissed on Tuesday a challenge to federal wiretapping laws with a 5-4 decision in Clapper v. Amnesty International USA.  The ruling prevents further review of the case, filed against the 2008 FISA Amendment Act, a federal law expanding the ability of federal law enforcement agencies to use warrantless wiretapping to intercept communications between Americans and foreign nationals under the guise of increasing national security.

From the SCOTUSblog, the details of the decision:

Justice Samuel A. Alito, Jr., who wrote the majority opinion, concluded that the challengers’ lawsuit was based upon a “chain of contingencies” that would have to fall into place before their communications might be at risk of eavesdropping.  They had not shown, the opinion concluded, that harms to them were “certainly impending” –  a rigorous standard for testing the right to sue.

The decision fit into two ongoing patterns established by the modern Court: a narrowing of the scope of the right to sue in federal court as a general proposition, and a stream of decisions insulating highly secret government war programs from judicial review in the regular federal court system.

ACLU Deputy Legal Director Jameel Jaffer, who argued the case before the justices in October, called it a “disturbing decision.”

More background on the case from the ACLU here.

There is still one other challenge to federal wiretapping laws pending before the high court.  The Electronic Frontier Foundation, a libertarian group focused on government regulations of technology, is challenging the legitimacy of federal warrantless wiretapping in a separate case, Jewel v. NSA.

That case is currently in federal district court in San Francisco.

Eric Boehm is a civil liberties reporter for and bureau chief for PA Independent.  He can be reached at


Eric is a reporter for and former bureau chief for Pennsylvania Independent. He lives in Minneapolis, Minnesota, where he enjoys great weather and low taxes while writing about state governments, pensions, labor issues and economic/civil liberty. Previously, he worked for more than three years in Harrisburg, Pennsylvania, covering Pennsylvania state politics and occasionally sneaking across the border to Delaware to buy six-packs of beer. He has also lived (in order of desirability) in Brussels, Belgium, Pennsburg, Pa., Fairfield, Conn., and Rochester, N.Y. His work has appeared in Reason Magazine, National Review Online, The Freeman Magazine, The Philadelphia Inquirer, The Washington Examiner and elsewhere. He received a bachelor's degree from Fairfield University in 2009, but he refuses to hang on his wall until his student loans are fully paid off sometime in the mid-2020s. When he steps away from the computer, he enjoys drinking craft beers in classy bars, cheering for an eclectic mix of favorite sports teams (mostly based in Philadelphia) and traveling to new places.