Supreme Court Hears Challenge to Electronic Surveillance

The Supreme Court heard oral arguments today in Clapper v. Amnesty International, a case that will decide whether a group of American lawyers have standing to challenge the 2008 law that expanded the authority of the U.S. government to engage in electronic surveillance of overseas aliens suspected of terrorism.  Although the law does not permit American citizens to be targeted for surveillance, the plaintiffs fear that the government will end up overhearing some of their conversations with those foreigners who are being targeted.  The nine justices appeared to be closely divided on whether such fears are sufficient to support the plaintiffs’ standing claims.

In asking the Court to uphold their standing, the plaintiffs assert that if they are not permitted to challenge the surveillance law, then no one will be able to do so.  They may well be correct in that assertion, but that is immaterial. If no potential plaintiff can demonstrate that he has been injured by the law, the courts have no reason to examine claims that the law might infringe on someone else’s constitutional rights.  Of course, nothing prevents the plaintiffs from raising their concerns with appropriate officials in the Executive Branch and Congress, the branches of government with primary responsibility for national security matters.

The 2008 law is an outgrowth of the revelation by The New York Times in 2005 that the Bush Administration had adopted a Terrorist Surveillance Program (TSP), under which the overseas communications of suspected terrorists were being monitored.  Some critics charged that the TSP violated the requirements of the Foreign Intelligence Surveillance Act (FISA), a 1978 congressional statute that sought to regulate the use of electronic surveillance for national security purposes.  In response, Congress amended FISA in 2008 to establish a supplemental procedure whereby the Government could obtain judicial approval to engage in the sorts of overseas electronic surveillance undertaken pursuant to the TSP.

On the day that the amendments were enacted, several lawyers and several organizations (represented by the ACLU) filed a lawsuit seeking an injunction against the conduct of surveillance pursuant to the new law, the FISA Amendments Act (FAA).  They alleged that the FAA violated their First and Fourth Amendments rights as well as separation-of-powers principles.  Named as defendants are several senior Obama Administration officials, including Attorney General Eric Holder (whose authorization is required before any surveillance may be undertaken under the FAA).  The federal appeals court in New York held that the plaintiffs had standing to challenge the FAA; in June, the U.S. Supreme Court agreed to review that decision. Continue reading “Supreme Court Hears Challenge to Electronic Surveillance”