To boil it down to its essence, the trouble with the plaintiffs' case was that they couldn't prove they were spied upon.
One might argue that's because the spying was, well, secret even though it's clearly being done.
But that apparently wasn't enough to persuade a majority of justices to review the constitutionality of a 2008 broadening of the Foreign Intelligence Surveillance Act, or FISA.
A remedy, it would seem, lies with Congress. Unfortunately, there seems to be little stomach among lawmakers to include accountability provisions to reauthorization of FISA.
The 2008 FISA amendment included a clarification of the legal rationale supporting the executive branch's use of electronic surveillance techniques.
However, it also included an authorization of widespread surveillance of foreign communications, even if one party was a U.S. citizen. And all of this came without adequate oversight, which was the critical mistake.
Last week's Supreme Court ruling, decided on a 5-4 vote, shows just how difficult it is in some cases to discern whether the government is trampling on civil liberties, and how widespread such activity might be.
Justice Samuel A. Alito Jr. wrote the majority opinion, which said the plaintiffs failed to establish they had been harmed by the modifications to the law.
He also turned back arguments that the plaintiffs, which include journalists, lawyers and human-rights advocates, were bearing significant costs in order to meet possible surveillance targets in person while avoiding government monitoring of their communications.
"[R]espondents cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending," the opinion said.
As we said in an editorial about the issue in November, it's a Catch-22. If someone on U.S. soil has occasion to communicate with someone on foreign soil who might be of interest to the government, those e-mails and phone calls could be monitored.
And unless those communications somehow eventually are disclosed as part of a criminal prosecution, there is no way to know whether they're being intercepted.
Now that the court has ruled, the best hope of remedy lies with Congress.
There are ways to structure discreet yet impartial reviews of such activity to ensure the government isn't overstepping its authority.
Federal lawmakers must create a counterbalance to expanded executive spying authority so there is a way to assess whether the privacy rights of American citizens are being respected by their government.
The Denver Post, March 3