Shadowproof

Despite Hurricane Sandy, Supreme Court Hears Argument Over Whether NSA Warrantless Wiretapping Can Be Legally Challenged

US Supreme Court (Photo by dbking)

The United States Supreme Court heard a legal challenge being brought by the American Civil Liberties Union (ACLU) against the FISA Amendments Act (FAA) of 2008 today.

The lawsuit was filed on behalf of human rights attorneys, journalists and human rights and media organizations. And, despite the threat of Hurricane Sandy, the Supreme Court went ahead with oral argument to determine whether the plaintiffs had the “standing” to challenge the legality of the NSA’s surveillance operations.

SCOTUSblog‘s Lyle Denniston posted a definitive recap on the argument. He wrote the Court was “genuinely troubled that the government, carrying on a sweeping program of wiretaps seeking to track terrorism activity, may be putting lawyers in a serious professional and ethical bind as they represent individuals potentially caught up in that eavesdropping.”

Justice Ruth Bader Ginsburg appeared to be “put off by the prospect that no one would ever be able to sue, not even lawyers who had actually cut back on how they represent their clients out of fear of being monitored,” if the Court decided in favor of the government.

Justice Elena Kagan was apparently “offended” when Solicitor General Donald B. Verrilli argued “if lawyers were cutting back on how they dealt with their clients, they were doing so because of ethical restraints, not because of the government’s surveillance.’

Justice Anthony M. Kennedy, at one point, said, “A lawyer who was representing an individual who might be targeted as a potential terrorist would actually ‘engage in malpractice’ if that attorney did not take steps to protect conversations with the client or with the client’s family members from being monitored. Picking up on Justice Kagan’s repeated comments about lawyers’ ethical obligations to their clients, Kennedy appeared tempted to conclude that lawyers had, in fact, already suffered professional harm that might be sufficient to give them ‘standing’ to sue to challenge the program.”
But, Chief Justice John Roberts stated, according to Denniston, “It was not enough to get a lawyer into court that the government was actually using its expanded surveillance authority; the lawyer also had to show that sensitive conversations were being tapped. He displayed definite skepticism about whether Jaffer had shown that.”
“We were pleased with today’s argument,” ACLU deputy legal director Jameel Jaffer stated after argument. “The court seemed appropriately skeptical of the government’s attempts to shield this sweeping surveillance law from meaningful judicial review. The justices seemed appropriately sympathetic to lawyers, journalists and human rights researchers, who are forced to take burdensome precautionary measures because of the law.”
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