Several U.S. Supreme Court justices suggested that a group of lawyers and civil rights activists should have the right to challenge a federal law allowing government surveillance of international phone calls and e-mail.
The Obama administration is trying to halt a legal challenge filed by the American Civil Liberties Union, representing Amnesty International and lawyers, international rights activists and journalists.
The groups contend the 2008 law violates the Constitution by allowing the monitoring, with minimal court supervision, of international communications by Americans who aren’t suspected of criminal or terrorist activities. The appeal heard today asks whether the ACLU and its allies can pursue their suit. It doesn’t address the lawfulness of the wiretapping law itself.
The justices held today’s court session as Hurricane Sandy moved toward Washington.
The groups and people who sued haven’t shown they suffered harm from surveillance, U.S. Solicitor General Donald Verrilli told the court.
Their claims “depend upon a cascade of speculation” that they will be subject to surveillance, Verrilli said.
Justice Anthony Kennedy expressed skepticism.
“You are saying that the government has obtained this extraordinarily wide-reaching power and we have extraordinary risks that face this country, and the government’s not going to use it,” Kennedy said. “It’s hard for me to think that the government isn’t using all of the powers at its command under the law.”
Justice Ruth Bader Ginsburg said there may be numerous uses of the law, “but we will never know” because the targets of surveillance won’t be notified.
“Given that lawyers are unlikely to be the targets of an investigation, if their conversations would be intercepted, according to you they’d never have standing,” Justice Sonia Sotomayor told Verrilli.
Still, Justice Antonin Scalia said the court has had other cases in which it was clear that nobody would have legal standing to file a case. In such cases, “it’s none of our business” under the separation of powers between the branches of government, he said.
The administration argues that those who sued lack legal standing because the law is aimed at monitoring communications by non-Americans outside this country, not the people on the U.S. end of a phone call or e-mail.
“It’s not enough, of course, to know that the government is using the statute” to conduct surveillance, Chief Justice John Roberts told Jameel Jaffer, the lawyer for the groups that sued. “The whole question is whether or not your clients have been injured, not whether the statute’s being used.”
The law was enacted following the public disclosure in 2005 that President George W. Bush, after the 2001 terrorist attacks, ordered the National Security Agency to intercept telephone calls between suspected terrorists overseas and their comrades in the U.S. The surveillance was conducted without court review.
The ACLU sued, and the 2nd U.S. Circuit Court of Appeals in New York said the suit could proceed.
The 2008 law requires the government to get authorization from a special body, the Foreign Intelligence Surveillance Court, to establish wiretaps.
The ACLU says the law’s requirements are so minimal that an order from the special court can authorize surveillance of thousands or millions of communications. Barring the lawsuit may mean people can never challenge the law because they won’t know they were under surveillance, it says.
The justices will rule by late June. The case is Clapper v. Amnesty International USA, 11-1025.
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