The US Supreme Court on Monday is set to hear oral argument in a case examining whether Americans have legal standing to file a lawsuit challenging the constitutionality of a US surveillance program designed to vacuum up millions of international telephone and email messages to mine for critical intelligence.
The secret program, begun under the Bush administration, uses bottlenecks in the telecommunications system to collect telephone conversations and emails that might help the government collect “foreign intelligence.”
The problem, according to privacy experts, is that the massive electronic collection effort is not limited by individualized warrants issued and overseen by federal judges. The new surveillance program is more general. It can sweep up the international phone calls and emails of Americans, particularly those who communicate with potential targets of US intelligence who are overseas.
It is that prospect that led a group of lawyers, human rights advocates, and journalists to file a lawsuit in 2008, asking a federal judge to declare the surveillance program unconstitutional.
They argued that their work requires them to engage in sensitive phone conversations and emails with colleagues, clients, journalistic sources, witnesses, experts, and victims of human rights abuses overseas.
They say they have a reasonable belief that the US program will record, retain, and facilitate analysis of their private, privileged communications. In some instances, they say, they decided to forego the use of the phone and email, and instead traveled overseas – at considerable expense – to undertake sensitive conversations in person to insure they would remain privileged and private.
Justice Department lawyers counter that the plaintiffs’ claims are merely speculative, since they have offered no proof that any of their communications have been intercepted or would be intercepted in the future. In addition, the government says it is under no obligation to disclose whether such surveillance has taken place. The secrecy of the program is justified as necessary to protect US national security.
The central issue at this stage of the litigation isn’t whether the broad surveillance program violates privacy, free speech, or other constitutional principles. At this stage, the issue is whether the plaintiffs have suffered a concrete injury that a judicial decision can remedy.
Without such an injury, the plaintiffs are not entitled to use the courts to resolve their dispute.
The doctrine of standing is designed to prevent lawyers from using the courts to air mere disagreements over policy.
The plaintiffs say their injuries are substantial and more than justify the court’s involvement.
A federal judge disagreed and dismissed the lawsuit. A federal appeals court panel reversed that decision, ruling that the plaintiffs faced a real and immediate threat that their communications would be intercepted by the government.
The appeals court, the Second US Circuit Court of Appeals in New York City, said the additional burdens and expenses of traveling overseas to preserve the confidentiality of their communications amounted to an actual injury that conferred standing to file the lawsuit.
It is that appeals court decision that is now before the Supreme Court.
“This law clearly intrudes on constitutionally protected privacy and free speech rights, and the courts have not just the authority but the obligation to intervene,” Jameel Jaffer, deputy legal director at the American Civil Liberties Union, said in a written statement.
Mr. Jaffer, who is set to argue the case on behalf of the plaintiffs, said he is hopeful the justices will agree with the appeals court that the constitutionality of the surveillance program can be tested in court.
“The court of appeals rightly held that our clients have the right to challenge the law, because the substantial risk that their communications will be monitored under it has compelled them to take costly measures to protect sensitive and privileged information,” he said.
US Solicitor General Donald Verrilli counters that those seeking to challenge surveillance laws must offer more than just a fear of being monitored.
“Respondents’ case for standing depends entirely upon speculation,” he said in his brief to the court.
“Lacking any evidence of concrete government action that has, or will, harm them, respondents offer conjecture about the nature and scope of potential surveillance,” he wrote.
Such conjecture cannot establish standing, he added.
If the Supreme Court agrees with the government, the case would end there. On the other hand, if a majority of justices uphold the appeals court, the case will return to federal court for a trial examining the constitutionality of the surveillance law.
At issue in the underlying dispute, is a substantial shift in the way the US government justifies its surveillance operations. Prior to the new law, both law enforcement and intelligence agencies seeking to conduct electronic surveillance within the US had to justify the effort by revealing the potential target and proving to a neutral judge that the government had probable cause to believe the targeted individual was involved in activities justifying the surveillance.
After the 911 attacks, with the US government on high alert for a potential second wave of Al-Qaeda terrorism, President Bush authorized a secret electronic surveillance program that collected massive amounts of communications data while by-passing well-established judicial oversight procedures.
The secret effort continued for years without congressional authorization. After press reports exposed the effort, Congress and the Bush administration passed a statute in July 2008 authorizing a version of the surveillance program.
Critics said it would subvert constitutional safeguards and allow dragnet surveillance of wide swaths of electronic communications without meaningful oversight.
A decision in the case is expected by the end of the court’s term in June.