New York City—PEN American Center today denounced a Supreme Court ruling that scuttles a challenge by PEN and other human rights groups to the government’s secret telephone and Internet surveillance program. PEN American Center President Peter Godwin called the decision “a Kafkaesque holding that puts writers, journalists, human rights workers on notice that the U.S. government can look over their shoulders anywhere in the world and there is nothing they can do about it.”
The case, Amnesty v. Clapper, was argued before the Supreme Court in October, and centered on whether PEN and its co-plaintiffs could pursue their lawsuit challenging the FISA Amendments Act, the 2008 law authorizing the National Security Agency’s massive surveillance program, without being able to prove that their communications are being monitored under the top-secret program. The U.S. Second Circuit Court of Appeals held last year that the groups had standing to sue because it was likely that their international calls and emails were being monitored as part of the program, and because they had to take costly precautions to ensure the confidentiality of sensitive communications with clients and colleagues overseas. But the Obama Administration appealed, arguing that plaintiffs lacked standing because they could not definitively show that their staff and contacts had been monitored. By a 5-4 vote, the Supreme Court ruled today in favor of the administration.
“Everyone should feel uneasy about this decision, and what it says about the shift in power toward secret, unaccountable government agencies with unprecedented surveillance capabilities,” said Godwin. “The U.S. government is running a secret program that monitors people. In order to challenge the legality of the program, the Court’s majority says you have to show that you’re being monitored. You can’t show this, of course, because the program is secret.”
“It is hard not to see this is as a dark day for citizen oversight and for the notion that governments must be accountable to their people,” Godwin concluded.
The four dissenting judges in today’s ruling, Justices Breyer, Ginsberg, Sotomayor, and Kagan, agreed that the very nature of the surveillance powers, their stated purpose, and past government conduct mean that it is likely that at least some of the plaintiffs’ international communications were being intercepted, and that they therefore deserved to pursue their court challenge. “In my view, this harm is not ‘speculative,’” Justice Breyer wrote in the minority’s dissenting opinion. “Indeed it is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen.”
In an increasingly interconnected world that is watched over by sophisticated and highly classified surveillance technologies, PEN American Center Freedom to Write Program Director Larry Siems noted, common sense suggests that even more private communications will be vulnerable in the future—but that the Court’s ruling essentially says citizens and organizations may be helpless to protect themselves against secret programs. “This is a big loss today for organizations like PEN that depend on confidentiality to carry out their human rights work,” Siems said. “It could prove to be a bigger loss for all of us in the future.”
PEN American Center is the largest of the 144 centers of PEN International, the world’s oldest human rights organization and the oldest international literary organization. The Freedom to Write Program of PEN American Center works to protect the freedom of the written word wherever it is imperiled. It defends writers and journalists from all over the world who are imprisoned, threatened, persecuted, or attacked in the course of carrying out their profession. For more information on PEN’s work, please visit www.pen.org