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Supreme Court justices wrestled today with the issue of whether someone can challenge a 2008 eavesdropping law even if they can’t prove that they have been swept up under its surveillance. The court’s ruling could force Congress to revisit that law.
The court did not focus on the constitutionality of the law itself, but rather whether those challenging its constitutionality had the standing to do so. If the court rules that the challengers, led by Amnesty International USA, have the right to sue the government, specifically Director of National Intelligence James R. Clapper Jr., then it could open to door to the 2008 law being struck down.
Under the law, the federal government can conduct surveillance of foreign targets without an individual court order even if those targets are communicating with people in the United States.
The widened surveillance authority provisions of the law are set to expire at the end of the year. The House has passed a bill extending them, while Senate Intelligence Chairwoman Dianne Feinstein (D-Calif.) wants to pass an extension bill in the lame-duck session, although Sen. Ron Wyden (D-Ore.) has placed a hold on the bill out of concern for a lack of information about how the 2008 law has affected the privacy of U.S. citizens.
The challengers — a group of attorneys, journalists and organizations — fear that the government is using the law to conduct surveillance of them and inhibit their abilities to do their jobs. Many say they have taken costly steps to avoid that surveillance, such as flying to meet with a client rather than speaking by phone. The government contends that the challengers cannot establish that they have been sufficiently harmed, and therefore have no standing in this case.
The liberal-leaning justices most sharply questioned the attorney for the government, Solicitor General Donald B. Verrilli Jr., while the conservative-leaning judges mostly threw skeptical questions at the attorney for the challengers, Jameel Jaffer.
“Is there anybody who has standing?” Justice Sonia Sotomayor asked Verrilli. Added Justice Ruth Bader Ginsburg, “In this case, the person will never know” if they have been swept up under the surveillance. Their point appeared to be that this case was unique, given the secretive nature of the surveillance. Verrilli answered that in criminal cases, some surveillance subjects would be notified during proceedings if they had been wiretapped.
Justice Antonin Scalia pointed out, however, that the court has examined cases where no one at all has standing, and therefore the premise was not absurd.
Chief Justice John G. Roberts Jr. pressed Jaffer for arguing that the challengers had “substantial risk” of harm, rather than the usual standard of “certainly impending” harm. Jaffer responded that “certainly impending” isn’t the only standard the court has used.
“It might not be a storm tomorrow,” Justice Stephen G. Breyer said. “I mean, you know, nothing is certain.” Breyer also added, “If they aren’t wiretapping the people who are described here, who are they wiretapping?”
Justice Anthony M. Kennedy, a swing vote in many Supreme Court cases, was the swing vote in the two most recent standing cases, Massachusetts v. EPA and Summers v. Earth Island Inst. Today, he directed most of his questions at Verrilli, asking about a “cascade of inferences” that Verrilli presumed would need to accompany any legal challenge and casting doubt on the notion that the government wasn’t aggressively using its authority. He also suggested that whatever the reason an attorney representing a terrorist suspect had to change his behavior, he would still have to change it because of the 2008 law