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.”

Warrantless Wiretapping Legalized

The act legalized National Security Agency warrantless wiretapping authorized by the administration of President George W. Bush. It made it legally permissible for the government to conduct dragnet surveillance of Americans’ international communications, even if there was no probable cause or individualized suspicion for such surveillance.

The US Court of Appeals for the Second Circuit ruled in March 2011 that the plaintiffs did have standing to challenge. It did not buy the government’s position, which according to the ACLU was that plaintiffs should not be able to sue without showing they have been monitored under the FAA but the government should not have to disclose information to plaintiffs on whether they have been monitored. The Obama administration appealed and the challenge went to the Supreme Court.

As a presidential candidate in 2008, Barack Obama criticized the law, after he decided to not filibuster and vote for it. He was critical of the fact that it provided “retroactive immunity to telecommunications companies that may have violated the law by cooperating with the Bush Administration’s program of warrantless wiretapping.” He found this potentially weakened the “deterrent effect of the law” and removed “an important tool for the American people to demand accountability for past abuses.” But, now Obama no longer displays such concern. He has fully united himself with the position of the national security state. His Justice Department defends the law, and his administration thinks the law should be reauthorized because it “continues to produce significant information that is vital to defend the nation against international terrorism and other threats.” (More background on the FAA and the case can be found here.)

Government Argues Even If Plaintiffs Were Injured by Surveillance It Doesn’t Matter

In a brief filed with the court, the government asserts the plaintiffs did not prove there was a “likelihood” that they would experience a future or imminent injury from their communications being acquired while corresponding with a person abroad. The government takes issue with the fact that plaintiffs’ statements on how the government might apply Section 1881a to “target foreign persons abroad for foreign-intelligence information” were entirely “speculatory.” They do not have any “personal knowledge” of the government’s “targeting priorities and practices.” Of course, there is no way that they could because operations of the government are completely concealed by state secrecy.

The government suggests that even if the plaintiffs could have shown they would be at risk they would still lack standing because the FAA does not “direct” intelligence gathering but “authorizes” it. They could not prove the authorization had ever been acted upon. The government maintains the secrecy around foreign intelligence operations, which is “essential to the operation” of US foreign intelligence services, is such that the Court of Appeals could not have made conclusions about the nature of surveillance under the FAA. And, the government argues that expenses incurred because plaintiffs were afraid or wanted to avoid surveillance did not constitute “cognizable injuries” and were “self-inflicted.”

Furthermore, like an adept ministry official in George Orwell’s 1984, the government asserts that the Court of Appeals decision should be reversed because an injunction would not allay plaintiffs’ fears. The government could still legally monitor or spy on their “foreign contacts.” Without being able to guarantee that people abroad communicating with the plaintiffs would not come under surveillance via other mechanisms, it is pointless to allow a challenge to the FAA to move forward.

Disputing the Government’s Position

Several briefs filed by organizations in support of the challenge dispute the government’s position. The Center for Constitutional Rights (CCR), counters in its brief:

…Surveillance policies that hamstring those few attorneys engaged in the task of ensuring executive accountability by bringing claims before the judiciary are worthy of more thorough scrutiny from the federal courts, not less. Closing the courthouse doors to such claims risks a systemic harm: a corrosion of the ability of the judiciary to confront other unlawful behavior of the executive…

The Electronic Privacy Information Center (EPIC) adds in their brief:

…The public’s knowledge of the government’s activity is limited, and its reasonable concern about the interception of communications is increased by the lack of public reporting and notification under the FISA Amendments Act. Without adequate reporting and accountability, there is insufficient assurance that the communications of U.S. persons will not be intercepted. The costs incurred by respondents to avoid disclosure of confidential communications are therefore reasonable in light of the government’s surveillance capabilities and  its  failure to provide adequate reporting of the use of  its surveillance authority…

Furthermore, the Reporters Committee for Freedom of the Press suggests:

The government’s broad powers under the FISA Amendments Act of 2008 (“the FAA” or “the Act”), which allows federal officials to monitor international electronic communications even if one party is in the United States, directly affect the ability of journalists to gather and report news stories and constitute a harm sufficient to create standing to challenge the Act. Oftentimes, a source’s willingness to provide a journalist with truthful information about significant matters of public interest and concern is wholly dependent on an assurance that the source’s identity will not be revealed, thereby exposing him or her to retaliation. The amendments at issue, however, hamper the formation of these important journalist source relationships by eliminating journalists’ ability to make good-faith promises of confidentiality to international sources…

The False Choice Between Liberty & Security

There is enough here to justify a Supreme Court decision to grant standing to plaintiffs so a legal challenge can be heard. The New York Times recognized this much in a recent editorial, where it concluded there would be large implications for US citizens if the Supreme Court acquiesced to the “government’s cramped reading of standing.”

“As a practical matter, it would foreclose any meaningful judicial review of the warrantless wiretapping statute, perhaps permanently,” the editorial board wrote. “The damage to the nation’s system of checks and balances, which relies on independent court scrutiny of laws as a safeguard against legislative and executive branch overreaching that disrespects constitutional rights, would be serious.”

Unfortunately, there are news organizations like the Washington Post, which cannot bring itself to take a stand. In the Post’s recent editorial on the challenge, the Post does not bother to say whether they think the Supreme Court should grant standing or not. The Post merely offers a summary of why plaintiffs are bringing a challenge and then offhandedly notes there’s always Congress if the challenge fails because Congress has to reauthorize the FISA Amendments Act by December.

It becomes clear the Post does not really think the constitutional concerns of plaintiffs and others in the country have significant merit. The Post writes, “Discomfort with the government’s capacity, technical or legal, to collect and retain massive amounts of personal information is understandable,” which is a very authoritarian way to shrug off concerns about surveillance state operations. Then, it continues adding that the news outlet favors the law and believes it should be extended. It already has enough “enhanced congressional monitoring” that it makes it possible to provide oversight plus it makes it possible for government to “defend” American lives and property.

The editorial board completely ignores the concerns of Senator Mark Udall and Senator Ron Wyden, who have both officially expressed concerns over “a loophole in the law that could allow the government to effectively conduct warrantless searches for Americans’ communications.” They do not think the act has rules that are strong enough to protect privacy and are disappointed the current bill up for reauthorization lacks protections.

The key reason the legal challenge has proceeded through the courts is because Congress has failed in its duty to check this expansion of executive power. If it were remotely interested in providing meaningful oversight as a body, this challenge would not be before the Supreme Court. However, Congress is entirely subservient to the interests of the national security state and unmoved by concerns of Americans, who oppose violations of civil liberties or the idea that one has to choose between security and liberty. So, the plaintiffs have advanced this case as a last-ditch effort to disrupt the unchecked expansion of the surveillance state in America.


Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."