Warrantless Eavesdropping Before Supreme Court

Photo: anthonycmaki/Flickr

The Supreme Court on Monday will hear arguments on whether it should halt a legal challenge to a once-secret warrantless surveillance program targeting Americans’ communications, a program that Congress eventually legalized in 2008.

The hearing will mark the first time the Supreme Court has reviewed any case touching on the eavesdropping program that was secretly employed by the George W. Bush administration in the wake of the September 11, 2001 terror attacks, and largely codified into law years later.

Before the justices is the FISA Amendments Act (.pdf), the subject of a lawsuit brought by the American Civil Liberties Union and others. The act authorizes the government to electronically eavesdrop on Americans’ phone calls and e-mails without a probable-cause warrant so long as one of the parties to the communication is believed to be outside the United States. Communications may be intercepted “to acquire foreign intelligence information.”

The government has also, according to former top Justice Department lawyer David Kris, taken the ”position that surveillance of a U.S. person’s home and mobile telephones was ‘directed at’ al Qaeda, not at the U.S. person himself. [T]his logic seemed to allow surveillance of Americans’ telephones and e-mail accounts, inside the United States, without adherence to traditional FISA, as long as the government could persuade itself that the surveillance was indeed ‘directed’ at al Qaeda or another foreign power that was reasonably believed to be abroad.”

That bill was signed into law in July 2008, and the ACLU filed suit immediately claiming it was unconstitutional. A lower court judge tossed the suit.

But a surprise appellate court decision last year reinstated the challenge. The Obama administration asked the Supreme Court to overturn the decision and, in May, the justices agreed to do so.

The administration argues that the ACLU and a host of other groups don’t have the legal standing to bring the case. A lower court agreed, ruling the ACLU, Amnesty International, Global Fund for Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation magazine, PEN American Center, Service Employees International Union and other plaintiffs did not have standing to bring the case because they could not demonstrate that they were subject to the eavesdropping.

The groups appealed to the 2nd U.S. Circuit Court of Appeals, arguing that they often work with overseas dissidents who might be targets of the National Security Agency program. Instead of speaking with those people on the phone or through e-mails, the groups asserted that they have had to make expensive overseas trips in a bid to maintain attorney-client confidentiality.

The plaintiffs, some of them journalists, also claim the 2008 legislation chills their speech, and violates their Fourth Amendment privacy rights.

Without ruling on the merits of the case, the appeals court agreed with the plaintiffs last year that they have ample reason to fear the surveillance program, and thus have legal standing to pursue their claim.

A similar standing argument was made by journalists who opposed a provision of the 2012 National Defense Authorization Act that allows for indefinite detention of American citizens without trial, and in June, they won an injunction against the provision.

But even if the Supreme Court sides with the ACLU, that does not necessarily mean the constitutionality of the FISA Amendments Act would be litigated.

The lawsuit would return to New York federal court, where the Obama administration likely would play its trump card: an assertion of the powerful state secrets privilege that lets the executive branch effectively kill lawsuits by claiming they threaten to expose national security secrets.

The courts tend to defer to such claims. But in a rare exception in 2008, a San Francisco federal judge refused to throw out a wiretapping lawsuit against AT&T under the state secrets privilege. The AT&T lawsuit was later killed anyway, because the FISA Amendments Act also granted the phone companies retroactive legal immunity for their alleged participation in the NSA spying program.

The only suit to prevail against the program was filed by two American lawyers who convinced a court, using open-source evidence, that their communications with an Islamic charity were spied on, without warrants. However, the suit was dismissed by an appeals court, which found that the section of federal wiretap law the lawyers proved the government had violated lacked any provision for penalizing governmental lawbreaking.

The FISA Amendments Act generally requires the Foreign Intelligence Surveillance Act Court to rubber-stamp terror-related electronic surveillance requests. The government does not have to identify the target or facility to be monitored. It can begin surveillance a week before making the request, and the surveillance can continue during the appeals process if, in a rare case, the secret FISA court rejects the surveillance application.

The act expires at year’s end. President Obama, who voted for the act as a senator and presidential candidate in 2008, says it’s a top priority for Congress to reauthorize it.

Scotusblog has all the court documents.

The justices normally take weeks or months to rule after hearing a case.