Back to the ruling. The dissenting opinion, penned by Justice Breyer, essentially says the harm is real, because we all know who the NSA is and what it does – it’s no logical leap to assume that innocent American citizens are being spied on.
The problem with this ruling? Among other things, unfettered eavesdropping by the world’s biggest spy agency can kill attorney-client privilege, especially for those who are accused (but not convicted) of alleged terrorist acts. It can reveal the identities of secret informants and government whistleblowers – like the two gentlemen who helped expose the warrantless wiretapping in the first place. It can scotch the efforts of human rights organizations to expose illegal acts by the NSA itself. And, of course, it can violate the rights of ordinary citizens who happen to make the occasional overseas phone call.
As TechDirt’s Mike Masnick notes,
Doesn't that seem like a serious constitutional problem? The government can pass laws that it can spy on people in private, and there's no way to then challenge that law. Oh, and if you happen to discover (by accident!) that you've been spied upon the government can just claim sovereign immunity, and that's it. Case closed.
This week members of the US Senate have asked the FISA court to make it easier to declassify its proceedings – so if we can’t find out how the NSA is violating our rights today, at least we might be able to uncover what abuses have occurred in the past. In a hearing on the FISA bill last December, Senator Jeff Merkley (D.-Oregon) stated:
“An open and democratic society such as ours should not be governed by secret laws, and judicial interpretations are as much a part of the law as the words that make up our statute… When a law is kept secret, public debate, legislative intent, and finding the right balance between security and privacy all suffer.”
We’ve seen what happens in other countries when their spies are no longer accountable to anyone but themselves. You don’t have to be paranoid to imagine it happening here. Rulings (or non-rulings) like this one just make it a lot easier.