The U.S. Supreme Court is considering whether a coalition of civil rights advocates and lawyers can challenge a law that allows spying on citizens in the United States without a warrant in the name of counter-terrorism -- but unless Congress steps on the gas the law will expire on New Year's Eve, leaving the high court case hanging in midair.
The justices heard argument Oct. 29 on whether the coalition has "standing" to challenge the latest version of the Foreign Intelligence Surveillance Act. To challenge a government practice or law as unconstitutional, a plaintiff needs "standing." One acquires standing -- the right to sue -- by showing injury.
The Bush administration and the Obama Justice Department have argued individuals and organizations must be able to show they were monitored by the surveillance program to have standing and challenge it in court.
But the program's target list is secret. The U.S. government won't tell potential targets whether they have been monitored. Therefore, the government contends, no one has standing.
The 1978 Foreign Intelligence Surveillance Act was enacted after the Watergate scandal. Under a special court's supervision, it let the U.S. government secretly eavesdrop on U.S. citizens and others in the United States in intelligence investigations, especially when someone communicates with a foreign agent. It was originally passed to allow the government to collect foreign intelligence information involving communications with "agents of foreign powers."
The 2001 Patriot Act, enacted after the Sept. 11, 2001, terror attacks, expanded FISA to let the FBI get the personal records of targets from U.S. libraries and Internet service providers.
The real game change came in 2008. The FISA Amendments Act, abbreviated in court records as FAA, was enacted that year and extended the act for five more years.
Now the law allows the government to eavesdrop on U.S. electronic communications -- phone calls, e-mails and other forms -- without a warrant in the United States as long as one end of the communication is outside the United States.
But the act is facing its own "cliff" at the end of the year unless Congress acts.
The U.S. House voted 300 to 118 in September to extend the law for five years. No one is suggesting the U.S. Senate will not vote to extend the law as well, though the upper chamber may do some trimming.
The Senate Intelligence Committee approved last June without amendment a five-year renewal of the intelligence surveillance authorities of the law. In September, however, the Senate Judiciary Committee amended the extension of the proposed re-enactment to let this version expire in 2015, instead of 2017 as the administration requested, FAS Secrecy News reported.
Secrecy News is produced by the Federation of American Scientists.
The judiciary committee voted to further require the Inspector General of the Intelligence Community to review the implementation of the FISA Amendments Act "with particular regard to the protection of the privacy rights of United States persons," Secrecy News reported. The inspector general would also be required to issue an unclassified summary of the review.
A similar amendment offered by Democrats was rejected by the Senate Intelligence Committee.
Meanwhile, conservatives are urging the Senate to get moving before the law expires.
"Reauthorization of the bill, which expires at the end of this year, has yet to be taken up by the Senate," Heritage.org warned. "Following the attention brought to the FAA by the Clapper vs. Amnesty International USA case before the Supreme Court, the measure is now left to be considered by the Senate during the lame-duck session.
"The Senate should prevent the FAA from expiring during the lame-duck session to ensure that U.S. counter-terrorism officials have the tools they need to keep America safe."
The American Civil Liberties Union first filed suit challenging the 2008 FISA Amendments Act in July of that year on behalf of a broad coalition of plaintiffs who routinely contact people overseas. The government defendants are now headed by James R. Clapper Jr., as director of national intelligence; Keith B. Alexander, director of the National Security Agency and chief of the Central Security Service, and U.S. Attorney General Eric H. Holder Jr.
A federal judge dismissed the initial case, saying the ACLU plaintiffs didn't have standing. However, a three-judge federal appeals court panel in New York ruled differently when it handled it in March 2011, saying the coalition did have standing.
The 2008 FAA left much of the FISA framework intact, the appeals court said, but there were two crucial differences between the original FISA system and the new FAA regime.
"First, whereas under the pre-existing FISA scheme the government had to submit an individualized application for surveillance identifying the particular target, facility, type of information sought and procedures to be used," the appeals court said, "under the FAA, the government need not submit a similarly individualized application -- it need not identify the particular target or facility to be monitored ... .
"Second, whereas under the pre-existing FISA scheme the [FISA court] had to find probable cause to believe both that the surveillance target is a 'foreign power' or agent thereof and that the facilities to be monitored were being used or about to be used by a foreign power or its agent, under the FAA the [FISA court] no longer needs to make any probable-cause determination at all. Instead, the [FISA court] simply verifies that the government has made the proper certifications."
The federal appeals court said the new procedures mean surveillance orders can be "significantly broader. ... Under the FAA, by contrast, the plaintiffs allege that an acquisition order could seek, for example, all 'telephone and email communications to and from countries of foreign policy interest -- for example, Russia, Venezuela or Israel -- including communications made to and from U.S. citizens and residents.'"
In addition, the original FISA scheme required ongoing judiciary review of whether the government was complying with the law. Under the FAA, compliance is monitored by the executive -- the U.S. attorney general and the director of national intelligence, who make reports to the FISA court.
"The plaintiffs' uncontroverted testimony that they fear their sensitive international electronic communications [are] being monitored and that they have taken costly measures to avoid being monitored -- because we deem that fear and those actions to be reasonable in the circumstances of this case -- establishes injuries in fact," the appeals court said, "that we find are causally linked to the allegedly unconstitutional [FISA Amendments Act]. We therefore find that plaintiffs have standing to challenge the constitutionality of the [act] in federal court."
The ACLU group includes Amnesty International USA, the Global Fund for Women, Global Rights, Human Rights Watch, the International Criminal Defense Attorneys Association, The Nation Magazine, PEN American Center, the Service Employees International Union, the Washington Office on Latin America and several individuals.
As for the October argument before the Supreme Court, the Lawyers.com blog reported, "it appears as though at least some of the justices suspect the law may have been sufficiently harmful to certain parties" -- the sympathetic court members included Justices Stephen Breyer and Elena Kagan.
"Justice Anthony Kennedy, who is often the swing vote on split decisions from the Supreme Court, was incredulous at Solicitor General Donald Verrilli's repeated insistence that fears over surveillance amounted to mere speculation," the blog said.
The blog reported Kennedy saying from the bench: "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. It's hard for me to think that the government isn't using all of the powers at its command under the law in order to protect this country."
The Washington Post also saw sympathy from the justices for the challengers.
"Several Supreme Court justices expressed concern ... that lawyers, journalists and human rights researchers who think they are caught up in a sweeping federal surveillance law may never be able to challenge the law in court," the Post reported.
"Those contesting Congress' 2008 amendments to the Foreign Intelligence Surveillance Act ... say they are in a Catch-22: The government says they cannot challenge the law unless they can show that their communications are under surveillance, but such information is strictly secret."
Chief Justice John Roberts and Justice Antonin Scalia supported the administration's efforts from the bench.
But the Post said Kennedy indicated it was "more than speculation that the lawyers with clients overseas had good reason to think the government was listening."
Justice Ruth Bader Ginsburg suggested "there may be dozens of concrete applications affecting the plaintiffs in this case, but we will never know," the Post reported.
The Supreme Court should rule in the case sometime in the next several months -- assuming, as seems likely at this point, Congress re-enacts a version of the law before the end of the year.
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