In Washington D.C., Hurricane Sandy has shut down the MTA, all Smithsonian museums, the Stock Exchange, and plenty of public schools. But on Monday, SCOTUS decided to stay open to hear oral argument in Clapper v. Amnesty International USA, a case that will determine whether the federal government can constitutionally conduct warrantless, dragnet surveillance on the international phone calls and emails of people living in the United States.
However, Monday's arguments will not focus on whether the government has the right to play Big Brother when it comes to communications between Americans and foreigners. Today, the Court will hear whether Americans have the right to go to court about it.
The root of the complaint lies with amendments made in 2008 to the Foreign Intelligence Surveillance Act (FISA). These amendments eliminated the internal oversight in FISA. Previously, the government had to get permission from an internal judicial body, the Foreign Intelligence Surveillance Court (FISC), to monitor communications between foreigners and U.S. citizens. The federal government was required to explain their specific need for the information and identify specific targets. Though FISC rarely, if ever, refused a request from the government, after 9/11 the Bush administration pushed to eliminate the oversight altogether and began a massive, warrantless surveillance project on communications with foreigners.
Just hours after President Bush signed the amendments to FISA, a lawsuit was filed by a coalition of human rights organizations, foreign aid organizations, and international journalists, including Human Rights Watch, Global Fund for Woman, The International Criminal Defense Attorneys Association, and Pulitzer Prize winner Chris Hedges. They are represented by the American Civil Liberties Union. These organizations argue that their work requires them to be able to communicate confidentially with individuals located outside the United States, but that the amendments to FISA have depleted international trust that U.S. organizations are capable of doing so.
The issue today is an issue of legal standing. Do the appellees (Amnesty International USA et al.) have the right to bring this case to court?
The government argues that, given the secrecy of its surveillance program, none of these organizations can prove that their communications are being monitored, and that they are suing on the basis of paranoia. However, the appellees argue that their communications are reasonably likely to be swept up in the government’s dragnet surveillance, and they are forced to spend money to avoid risking the interception of their privileged communications. They conclude that this cost gives them grounds to sue.
The Second Circuit Court of Appeals agreed with the appellees on this point in March 2011. Standing to sue was originally denied in the Southern District Court of New York. The court is expected to issue an opinion at the end of their term in June. The Associated Press reports that the court seems skeptical of the government’s arguments.
Justices Kagan and Ginsberg seemed most critical of the government’s argument that the appellees did not have standing to sue if they could not prove they were being monitored, and most concerned about the ethical issues the law caused for professionals communicating with foreigners, Justices Scalia and Alito seemed least sympathetic to the appellees. As has become typical with the Roberts court, it appears Kennedy will make the swing decision in this case.