MOSCOW, October 31 - RAPSI, Ingrid Burke. The US Supreme court congregated to consider whether lawyers, journalists, and human rights researchers have standing to facially challenge the 2008 amendments to the Foreign Intelligence Surveillance Act (FISA), in a case pitting national security against fundamental freedoms.
The 2008 FISA amendments
The 2008 FISA Amendments were enacted in order: “to establish a procedure for authorizing certain acquisitions of foreign intelligence.” According to congressional documents released shortly after the amendments’ passage, the increased scope of government power was prompted by a national intelligence report on the threat of terrorism on US soil, which, “expressed the judgment, in part, that the [US] Homeland will face a persistent and evolving threat over the next three years, the main threat coming from Islamic terrorist groups and cells.”
In essence, the amendments allow the US government to collect and monitor American citizens’ international communications as a byproduct of its collection and monitoring of certain categories of foreign targets. According to New York attorney Jameel Jaffer, who represented Amnesty International in Monday’s hearing, “[t]he statute allows the government to acquire them, to retain them, to disseminate them.”
Positions of the government and Amnesty International
Amnesty International charges that the plaintiffs have standing to bring a facial challenge to the 2008 FISA Amendments based on the substantial risk that their communications will be acquired by the government in accordance with the act. Jaffer explained that his clients are lawyers, journalists, and human rights researchers that regularly deal in the information sought to be monitored under the statute.
The government, however, cast Amnesty International’s concerns as largely abstract, stating, “The key point here is that [Amnesty International’s] claims about this statute depend on a cascade of speculation.”
General Donald B. Verrilli, representing the government, pointed to four speculations he viewed as key to Amnesty International’s argument: first, speculation on the executive branch’s intelligence priorities and objectives; second, speculation on how executive branch officials plan to take action on such priorities and objectives; third, speculation on the independent judgment of a court in assessing the legality and constitutionality of any such plan of action; and fourth speculation that any surveillance that does occur will be conducted under the authority of the FISA 2008 amendments, rather than under some other legitimate form of authority.
Justice Scalia pointed to the importance of the fourth speculation, reasoning that if the plaintiffs’ injuries arise from being overheard, and if they would be overheard anyway under some other authority, than “by preventing the government from overhearing them under this statute, we’re not redressing their grievance, which is being overheard by the government.”
When Justice Sotomayor expressed concern over the fact that lawyers – a class of individuals unlikely to be the targets of an investigation – may never have standing to challenge the government’s interception of private conversations, Verrilli urged that it would be inappropriate to “relax the… standing requirement of injury in fact based on the reality that the specific applications of this statute may involve classified information.”
When prompted by Justice Ginsburg, Jaffer expressed little confidence in the court’s capacity to protect the constitutional rights of US citizens. Justice Ginsburg asserted that under these amendments the government is no longer required to identify a particular person or location in seeking a probable cause ruling from the court.
The future injuries standard
At the core of Monday’s discussion were technical issues relating to the “future injuries standard,” or – in other words – which test should be applied in determining the point when an individual can establish standing on the basis of impending damages. As all agreed that the standing issue in this case is contingent upon the plaintiff’s injury, not upon the government’s actual use of the amendments, the government and Amnesty International exchanged jabs over whether plaintiffs should be required to demonstrate “certainly impending” damages, or whether a “substantial risk” of damages would be sufficient.
Verrilli argued that Supreme Court cases have tended to adopt the “certainly impending” standard. Jaffer, however, urged that, “there is a question – even in cases that involve only a future injury, whether ‘certainly impending’ is in fact the standard.”
Other issues discussed
The discussion between the justices and the attorneys touched on a wide breadth of relevant issues, however, including the balance of powers between the executive and judicial branches. Justice Scalia at one point wondered whether issues of national security at this level should even fall within the court’s purview, stating, “We’ve had cases in the past where it is clear that nobody would have standing to challenge what is brought before this court… And we’ve said that that just proves that under our system of separated powers, it is none of our business.”
