The U.S. Supreme Court will consider whether lawyers and civil rights activists can pursue a challenge to a federal law allowing government surveillance of international phone calls and Internet communications.
The justices today agreed to hear the government’s bid to throw out the lawsuit by the American Civil Liberties Union, representing Amnesty International and a group of lawyers, international rights activists, journalists and other plaintiffs.
The groups asked a New York federal court to rule that 2008 amendments to the Foreign Intelligence Surveillance Act violate the Constitution by allowing the monitoring of international communications by Americans who aren’t suspected of criminal or terrorist activities. The law protects companies such as AT&T Inc. and Verizon Communications Inc. from lawsuits claiming they let the government use their networks for improper wiretaps.
The case before the high court involves questions about whether the ACLU and its allies can pursue their lawsuit, and doesn’t address the constitutionality of the wiretapping law itself.
The Obama administration is seeking to have the case dismissed, saying those who sued lacked legal standing because the law, aimed at monitoring communications by non-Americans outside the U.S., doesn’t directly apply to them. The government said there was no evidence they suffered harm from surveillance by U.S. intelligence agencies.
Testing U.S. Powers
“The constitutionality of the government’s surveillance powers can and should be tested in court,” Jameel Jaffer, the lead ACLU lawyer on the case, said in an e-mailed statement. “We are hopeful that the Supreme Court will agree.”
The 2nd U.S. Circuit Court of Appeals in New York said the lawsuit could proceed. It said the U.S. lawyers, activists and journalists were affected because their conversations may be tapped if they were on the other end of an international call with someone targeted for surveillance.
The appeals court said a belief that their communications could be intercepted prompted “costly and burdensome measures” to ensure confidentiality, such as traveling long distances for face-to-face talks that otherwise could have been conducted by telephone or e-mail.
The Justice Department said the appeals court set an overly lenient test.
Surveillance concerns by the ACLU and other groups are “completely speculative,” the government said. Allowing them to sue over the expense of guarding against the possibility that their conversations may be monitored lets them “establish standing through self-inflicted injury,” the Justice Department said.
The New York appeals court’s decision to let the case proceed conflicts with stricter standards applied by courts in other parts of the country, the government said.
The 2008 law requires the government to get authorization from a special Foreign Intelligence Surveillance Court to establish wiretaps.
The law’s requirements are so minimal, the ACLU argued, that they amount to a “blank check” permitting surveillance without showing the targets are “connected in any way, however remotely, to terrorism.”
Lawyers are in effect required, as a matter of professional ethics, to avoid telephone calls and e-mails for confidential communications protected by attorney-client privilege, the ACLU said.
The justices will hear the case in the term that begins in October.
The case is Clapper v. Amnesty International USA, 11-1025.
--Editors: Laurie Asseo, Jim Rubin
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