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Supreme Court seems 'troubled' with government's warrantless wiretapping program

Published time: October 30, 2012 18:33
Edited time: October 30, 2012 22:34
Reuters / Gary Cameron

Reuters / Gary Cameron

The Obama administration and the American Civil Liberties Union butted heads inside the walls of the Supreme Court on Monday as both sides presented arguments regarding the warrantless wiretapping of US citizens.

The top justices in the country listened to testimonies this week in the case of Clapper v. Amnesty International, but an eventual ruling from the Supreme Court in the matter won’t necessarily mean that the National Security Agency will have to stop spying on Americans anytime soon.

Under the 2008 amendments made to the Foreign Intelligence Surveillance Act, or FISA, the NSA is allowed to eavesdrop on any communications sent to a person suspected to be outside the United States without requiring a warrant. But while the provisions were put in place allegedly to aid in capturing any foreign intelligence for national security purposes, the law at the same time allows the agency to listen in and watch any activity sent from an American to a person abroad without giving an explanation why or ever alerting them.

“Under the FAA, the government can target anyone — human rights researchers, academics, attorneys, political activists, journalists — simply because they are foreigners outside the United States, and in the course of its surveillance it can collect Americans’ communications with those individuals,” the ACLU alleges in their initial legal brief.

The ACLU says that the FISA Amendments Act of 2008 (FAA) should be challenged in court, but the US government insists that they have no standing to present their case since they cannot show with absolute certainty that any of their clients have been wiretapped. The reason, of course, lies in the fact that the NSA refuses to disclose who and how they target, and cite state-secret privilege in hopes of being able to keep it that way.

On Monday, the Supreme Court heard arguments that could let them to decide if the ACLU’s clients — human rights workers and journalists — have any standing to go up against the FAA in court without being able to show that they’ve been targeted.

When Solicitor General Donald B. Verrilli presented a defense of the amendments on behalf of US President Barack Obama, he only made it a few seconds into his opening testimony before Justice Sonia Maria Sotomayor cut him off to ask, “General, is there anybody who has standing?”

According to the ACLU, their clients fit that category perfectly because they must resort to communicating with international parties without relying on telephones or email, financially and generally burdensome.

“Plaintiffs have standing here because there is a substantial risk that their communications will be acquired under the act and because this substantial risk has effectively compelled them to take immediate measures to protect information that is sensitive or privileged,” attorney Jameel Jaffer argued on behalf of the ACLU. The clients representative by the group, including journalists Chris Hedges and Naomi Klein, routinely engage in communications that the act is designed to allow the Government to acquire,” he said, specifically suggesting, “Plaintiffs communicate, for example, foreign intelligence information, the kind of information that the statute expressly authorizes the Government to collect, to retain and disseminate.”

“Well, the plaintiffs aren't going to be monitored under the statute. Other people are, and your concern is collateral, that the plaintiffs' discussions might be picked up,” Chief Justice Robert responded, “But the plaintiffs are not going to be monitored as targets.”

“Well, Mr. Chief Justice, I don't think that's exactly right,” Jaffer fired back. “I know that the statute says that the Government has to target people abroad, but in targeting people abroad the Government is collecting plaintiffs' communications.”

That overly broad and sweeping ability to indirectly spy on anyone in America is what Jaffer and the ACLU equates as “dragnet surveillance.”

I know the Government doesn't accept that label, but it concedes that the statute allows what it calls categorical surveillance, …which is essentially the surveillance that the plaintiffs here are concerned about,” he explained.

SCOTUSblog.com reporter Lyle Denniston says, “The Supreme Court showed Monday that it is genuinely troubled that the govenment, 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.”

“It was not immediately clear, though, whether that worry was deep enough to lead the Court to give those attorneys a right to sue to challenge the constitutionality of the global surveillance that seems to be tracking Americans’ conversations, too,” the reporter adds.

Following the morning’s hearing, Mr. Jaffer said the ACLU was "pleased" with the day's argument.

“The court seemed appropriately skeptical of the government’s attempts to shield this sweeping surveillance law from meaningful judicial review,” Jaffer said. “The justices seemed appropriately sympathetic to lawyers, journalists and human rights researchers who are forced to take burdensome precautionary measures because of the law."

In a separate but related case before a District Judge in San Francisco last week, the NSA was challenged in court for spying on customers of telecom giants AT&T through FISA.

"The government here seeks to transform the state secrets privilege from a powerful but targeted evidentiary shield into a justiciability sword, preventing the Judiciary from engaging in its constitutional duty," the plaintiffs argue.

Last month, the US House of Representatives agreed to renew the 2008 FISA Amendments Act by a vote of 301 to 118.