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Despite Hurricane, Justices Hear Surveillance Case

The rest of the government may have been shut down for the hurricane, but not the U.S. Supreme Court.

The justices were in court Monday to consider a challenge to the 2008 Foreign Intelligence Surveillance Act, known as FISA. The new law broadly expanded the government's ability to conduct large-scale monitoring of international phone calls and emails to and from people in the United States.

FISA, passed in 1978, was amended in 2008 to do away with the previous requirement that the government obtain a warrant from a special intelligence court when conducting electronic surveillance of individuals abroad who had contacts in the U.S. Instead, the government can now monitor large swaths of people, and the Foreign Intelligence Surveillance Court has very limited powers of supervision.

The FISA expansion was challenged in court by lawyers for detainees, human-rights groups and journalists who routinely have conversations with people overseas — conversations that they say almost certainly have been monitored. They contend that by authorizing what they call dragnet surveillance, FISA violates the Constitution's ban on unreasonable searches.

Monday's Supreme Court argument, however, was not about that. Instead, the issue was whether the case can be brought at all, because the government contends that unless those challenging the law can show with certainty that their conversations have been intercepted, they have no legal standing to sue.

A 'Catch-22'?

Those challenging the law call that a "Catch-22" because the only way to know with certainty that you've been monitored is if the government tells you, which it refuses to do when dealing with classified information.

Inside the Supreme Court on Monday, Solicitor General Donald Verrilli, representing the administration, faced that question immediately from Justice Sonia Sotomayor.

"Is there anybody that has standing to bring this challenge?" she asked.

Justice Ruth Bader Ginsburg followed up, saying she saw "a theoretical possibility" but not "a real one."

Verrilli acknowledged that bringing such a challenge "may be difficult."

But here, he said, the challengers are basing their claim on a "cascade of speculation" as to whether they have been monitored. It would not be appropriate, he said, to relax the usual requirement that a challenger show concrete injury to get in the courtroom door. Rather, the challengers should at least have to show an impending certainty of harm.

"If someone is unwillingly intercepted, that's a harm, right?" asked Justice Stephen Breyer.

Verrilli replied that it "may be."

Breyer responded, dryly: "There may be a storm tomorrow, too. Nothing is certain."

'Who Are They Wiretapping?'

Throughout the argument, though, Verrilli stuck to his guns, maintaining that the challengers have not demonstrated the kind of concrete harm the law requires to bring suit.

"Imagine yourself in this lawyer's position, representing someone associated with a terrorist organization," said Justice Elena Kagan. "You're going to be talking to the person's family members and associates. Now, as a lawyer, would you take precautions [like traveling abroad to talk to people in person], or would you pick up the phone and start writing emails to all these people?"

After all, observed Breyer, "If they aren't wiretapping the people described here, who are they wiretapping?"

Justice Anthony Kennedy, perhaps a swing vote in this case, chimed in at this point, saying that in his view the lawyers "engage in malpractice if they talked on the telephone ... given this statute."

The Challenge

But if Verrilli got a hard time, so did the American Civil Liberties Union's Jameel Jaffer, representing the challengers.

Justice Antonin Scalia observed that the Foreign Intelligence Surveillance Court was set up to apply Fourth Amendment protections, and that if that court thought the law deficient, it would have done something about it.

Kagan said it seemed to her that the government's strongest argument is that whatever precautions the challengers have to take under the new law, like not using the phone, they would have had to do the same under the old law.

Lawyer Jaffer said the new statute no longer targets just foreign agents. It "reaches whole categories of people" who couldn't have been reached under the old law — witnesses, journalists, human-rights investigators, he said.

Chief Justice John Roberts repeatedly admonished Jaffer with the observation that his clients "are not being monitored." They are being "incidentally monitored."

"I don't think that's exactly right," replied Jaffer. "The whole point of this statute was to allow the government to collect Americans' international communications." Indeed, he said, President George W. Bush "threatened to veto the law when it was proposed that Americans' communications should be segregated in some way."

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.