The US Supreme Court on Monday agreed to examine whether a group of lawyers, human rights activists, and journalists have legal standing to pursue a constitutional challenge to a federal law authorizing broad electronic surveillance overseas.
Members of the group are based in the US and thus cannot be directly targeted under the Foreign Intelligence Surveillance Act (FISA). But the plaintiffs say their work requires them to stay in telephone and e-mail contact with individuals in other countries who are likely to be targeted for surveillance by US intelligence agencies, including suspected terrorists.
The case stems from a secret Bush administration program that conducted blanket surveillance of international telephone calls and e-mails as part of the administration’s post-9/11 war on terror. The program bypassed the long-established requirement of court-authorized warrants and was denounced by critics as illegal and unconstitutional.
After the program was revealed, Congress amended FISA in 2008 to allow US intelligence to conduct similar electronic surveillance provided the targets were foreigners thought to be outside US territory.
It is the 2008 amendment to FISA that triggered the lawsuit by the lawyers, human rights activist, and journalists. The case is being litigated by the American Civil Liberties Union.
The plaintiffs say dragnet surveillance overseas by the US government is vacuuming up their US-based communications in violation of their free speech and privacy rights.
A federal judge threw the lawsuit out in 2009, ruling that the complaint was based on an “abstract fear” that the plaintiffs’ communications might be monitored rather than evidence that they actually were improperly monitored. Lacking such evidence the plaintiffs do not have the requisite legal standing to file their lawsuit, the judge said.
The Second US Circuit Court of Appeals in New York reversed that decision and reinstated the lawsuit in March 2011. The appeals court said that the plaintiffs’ fear of government monitoring was not “fanciful, paranoid, or otherwise unreasonable,” given the capabilities of US intelligence.
Solicitor General Donald Verrilli urged the high court to take up the case and reverse the Second Circuit decision.
“The panel’s decision … requires that the constitutionality of an Act of Congress authorizing important foreign-intelligence-gathering activity directed abroad at third parties be litigated in the abstract without an appropriate factual context,” Mr. Verrilli wrote in his brief to the court.
To establish standing to bring such a lawsuit the plaintiffs must prove that their communications were actually monitored by US intelligence, Verrilli said.
Such proof is difficult to obtain given the highly secret nature of surveillance work performed by the National Security Agency. The issue at the Supreme Court will be whether the plaintiffs have made a sufficient enough showing to justify the lawsuit proceeding to trial.
“The appeals court properly recognized that our clients have a reasonable basis to fear that the government may be monitoring their conversations, even though it has no reason to suspect them of having engaged in any unlawful activities,” lead counsel Jameel Jaffer of the ACLU said in a statement.
“The constitutionality of the government’s surveillance powers can and should be tested in court,” he added. “We are hopeful the Supreme Court will agree.”
Specifically at issue in the underlying lawsuit is a 2008 amendment to FISA that ACLU lawyers say authorizes mass acquisition of US-linked personal communications overseas without individualized judicial oversight.
“A mass acquisition order is a kind of blank check, which once obtained permits – without further judicial authorization – whatever surveillance the government may choose to engage in … for a period of up to one year,” Mr. Jaffer wrote in his brief.
“The Act does not require the government to demonstrate to the FISA [supervising] court that its surveillance targets are foreign agents, engaged in criminal activity, or connected even remotely with terrorism,” he wrote. “Indeed, the statute does not require the government to identify its surveillance targets at all.”
The ACLU brief added: “The statute expressly provides that the government’s certification is not required to identify the facilities, telephone lines, e-mail addresses, places, premises, or property at which its surveillance will be directed.”
Jaffer said that a single mass acquisition order can justify intercepts affecting “thousands or even millions” of US citizens and residents. “It could authorize the acquisition of all communications to and from specific countries of foreign policy interest – for example Russia, Iran, or Israel – including communications to and from US citizens and residents,” he said.
“It could authorize the acquisition of all communications of European attorneys who work with American attorneys on behalf of prisoners held at Guantanamo,” Jaffer wrote.
The case is Clapper v. Amnesty International USA (11-1025). It will likely be set for oral argument next fall or winter.