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.
