Surveillance Act Criticized, But Can It Be Fought?

The U.S. Supreme Court on Monday considers whether to allow a challenge to a federal law that provides for large-scale electronic surveillance of international phone calls and emails. The case is not a direct test of the Foreign Intelligence Surveillance Act. Rather, it is a test of whether the law can even be challenged in court at all.

How FISA Came To Be

Congress first passed the law in 1978 to prevent the kind of warrantless surveillance of Americans that had been uncovered by congressional investigators. Known by the acronym FISA, it required the government to obtain a warrant from a special intelligence court when conducting electronic surveillance of individuals abroad — surveillance that could pick up communications to and from people in the United States.

After Sept. 11, 2001, the Bush administration secretly circumvented the law. When its warrantless wiretapping was disclosed, the administration proposed legislation to quell the resulting furor. In 2008, Congress passed a new version of the law, loosening the reins considerably. It limited the FISA court's supervision, did away with the previous requirement for individual targeting, and instead allowed the government to monitor large swaths of people. Critics called it the "vacuum cleaner" approach to electronic surveillance.

The Challengers

Groups and individuals with frequent international contacts challenged the law in court, contending that FISA, by authorizing "dragnet surveillance," violates the Constitution's ban on unreasonable searches. But Monday's Supreme Court arguments do not get to that issue. Instead, the court is focusing on a threshold question: whether the case can be brought at all because the challengers cannot prove with certainty that their communications were intercepted.

Among those suing to invalidate FISA are human rights groups such as Amnesty International, journalists and lawyers for detainees. The lawyers, for instance, routinely have telephone conversations with the families of detainees, with witnesses and with investigators. The government, however, contends that without proof positive, the claims to have been spied upon are speculative, and the challengers have no legal standing to bring a case to court.

Proving Reason To Be Concerned

The challengers counter that the government's position amounts to a Catch-22 because in a secret program, there is no way to prove you've been monitored.

"Their argument is you can't challenge the statute if you can't show your own communications have been acquired under it," says Jameel Jaffer, deputy legal director of the ACLU, who is representing the groups. But the government, he adds, refuses to "tell you if your own communications have been acquired under it."

A federal appeals court in New York agreed with the challengers that they have suffered a concrete injury that justifies allowing the case to go forward. That court said that based on the challengers' reasonable fear of being monitored, they have largely abandoned international phone and email communications, and have spent time and money to travel overseas to meet with people in person in order to be free from government surveillance.

Todd Hinnen, who served as acting assistant attorney general for National Security in the Obama administration, concedes that because of the secret nature of the surveillance, "it's very difficult for a plaintiff to make specific and concrete allegations."

But, he adds, in an age of terrorism, the intelligence community needs greater latitude, and therefore Congress "consciously limited the circumstances" under which FISA can be challenged.

Checks And Balances

Basically, the government argues that the civil liberties protections in the law are internal. For example, the statute requires the attorney general and National Intelligence director to periodically assess the steps taken to minimize the effect of the surveillance on U.S. citizens.

But at the same time, the law does not contemplate a direct challenge in the courts. As Hinnen puts it: "It is a statute that governs foreign intelligence practices, targeting foreign citizens overseas, subjects that traditionally have been viewed as the core of Congress and the executive branch's prerogative."

Jaffer, of the ACLU, replies that if the Supreme Court accepts the government's position, the justices "will be accepting that this statute is immune to the kind of judicial review that we generally think federal statutes ought to be subject to."

After all, the issue being argued on Monday is not whether the law is constitutional, he observes, but "whether we have the right to challenge the constitutionality of the law."

It may seem like a technicality, but it is — at this point — the whole ball of wax.

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