The US Supreme Court has just ruled that citizens who wish to challenge the unconstitutional actions of the government under its ever expanding surveillance programs cannot have access to the courts. Writing for the majority was Justice Alito who has been criticized for the position he announced.
Alito rejected the ability of an array of journalists, lawyers and human rights advocates to challenge the constitutionality of the 2008 law allowing secret surveillance without meeting constitutional standards of probable cause. Alito simply said that the parties could not prove that they were subject to surveillance — since the Obama Administration has classified such evidence — and insisted that their fears and precautionary actions are merely efforts to “manufacture standing by incurring costs in anticipation of nonimminent harms.” Alito wrote that just because no one may be able to challenge the law is no reason to recognize standing — a position that guts the separation of powers principles underlying judicial review. He also cites to the secret FISA as judicial review — a truly laughable proposition. [Turley]
What many private citizens do not know is that before a case can be heard the party bringing it must have "standing". What Alito has said is that because the people bringing the suit cannot prove that they were under surveillance they lacked "standing" to even get into the courtroom. Of course they couldn't prove they were under surveillance because the government won't tell them if they are or aren't.
Granted, there are sometimes national security reasons why "just anybody" shouldn't be able to use the courts to gain access to classified information, but in an era when the government seems to be spying on just about anybody the court's recent decision should chill you to the bone. In other words, there is no where for you to turn.
Alito's ruling denying citizens standing and shutting them out of the judicial process reminded me of this song. And as funny as that might seem, the importance of selecting the right appellate court judges is no laughing matter.
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