Privacy SOS

Supreme Court “appropriately skeptical” of government’s claims on warrantless wiretapping suit

ACLU staff and supporters at the Supreme Court hearing on Amnesty v. Clapper today. From left to right: Lara Tobin, Josh Bell, Hina Shamsi, Anthony Romero, Jameel Jaffer (who argued the case for the ACLU), Mitra Ebadolahi, Alexander Abdo, Ateqah Khaki and Larry Siems. Photo credit: Shane Kadidal of the CCR.

The ACLU's challenge to the federal government's warrantless spying program authorized under the FISA Amendments Act came before the Supreme Court today in a standing hearing. The government has been fighting the case on the grounds that the plaintiffs, international human rights lawyers and researchers, do not have grounds (or "standing") to challenge the law because they cannot prove they were spied on under its authority. After an appeals court approved the lawsuit to go forward to the merits, the Obama administration asked the Supreme Court to hear the case on standing.

This morning, Sandy not withstanding, the Court heard oral argument in Amnesty v. Clapper to settle the standing issue once and for all.

The groups and the ACLU accuse the government of creating an environment in which lawyers and researchers cannot do their jobs for fear that their communications are being monitored. Again, the government contends that unless the plaintiffs can prove they were spied on, they have no grounds to sue. 

SCOTUS Blog reports that the court's decision will likely hinge on the views of Justice Kennedy. Apart from Alito and Scalia, who appear to have no problem with the government's arguments, the court appeared to be "genuinely troubled that the government, carrying on a sweeping program of wiretaps seeking to track terrorism activity, may be putting lawyers in a serious professional and ethical bind as they represent individuals potentially caught up in that eavesdropping," writes Lyle Denniston.

Jameel Jaffer, Director of the ACLU's Center for Democracy, argued the case before the court this morning.

"We were pleased with today's argument. The court seemed appropriately skeptical of the government’s attempts to shield this sweeping surveillance law from meaningful judicial review,” Jaffer said. “The justices seemed appropriately sympathetic to lawyers, journalists and human rights researchers who are forced to take burdensome precautionary measures because of the law."

NSA whistleblower Bill Binney, who has said that the agency monitors all obtainable digital communications and information in the world, penned an op-ed for Politico last week declaring that the Supreme Court must side with the ACLU in Amnesty v. Clapper, lest the excesses of the post-9/11 era become enshrined in US law for decades to come. Of the FISA Amendments Act and the limitless power it bestows on the National Security Agency, Binney wrote:

The NSA cannot be trusted with this power. No agency should be. Since 2001, the NSA has been willing time and again to throw the Constitution overboard and snoop on innocent Americans who are not suspected of any wrongdoing. Using shockingly fast machines called NARUS devices, the NSA can monitor virtually every single phone call, email and text that passes through the United States. The agency can make a mirror image of all those communications, then funnel those copies to massive data vaults. When it wants to, the NSA can then go through and compile a dossier on each and every one of us. That would be well and good if the agency followed the law and tracked only suspected terrorists. But it does not. Under the warrantless wiretapping program and now the FISA Amendments Act, the NSA conducts blanket, dragnet surveillance of Americans’ international communications, even when there is not even a hint that we’ve done something wrong.
The framers established our independent courts to be the final bulwark of liberty. They recognized that the political branches — Congress and the president — cannot be relied on alone to protect our rights, particularly in times of crisis. That is as true today as it has ever been. Threats to national security cannot be an excuse to throw out the very system that has been our nation’s strength for more than 200 years. We cannot allow the rhetoric of fear to justify abandoning our Constitution.
Let's hope that at least five Supreme Court justices agree.

© 2021 ACLU of Massachusetts.