Administration defends Bush-era surveillance law before high court

The Obama administration defended a warrantless wiretapping law before the Supreme Court on Monday.


At stake in the case is whether civil liberties groups, including the American Civil Liberties Union (ACLU) and Amnesty International, have the legal standing to challenge the Foreign Intelligence Surveillance Act (FISA) Amendments, which former President George W. Bush signed into law in 2008. 

The law authorizes the government to monitor phone calls and emails without a warrant as long as one of the parties to the communication is reasonably believed to be outside the United States. The civil liberties groups sued, arguing the law allows for "dragnet surveillance" of American citizens in violation of the Fourth Amendment.

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Donald Verrilli, the solicitor general of the United States, argued that the civil liberties groups cannot challenge the law's constitutionality because it does not harm them.

But Jameel Jaffer, deputy legal director for the ACLU, argued that his organization has had to take expensive precautions to keep the government from listening in on phone calls with clients who are suspected of terrorist activity. He argued that those precautions, such as flying overseas to meet clients face-to-face, qualify as a harm of the law, giving the ACLU the right to sue.

The court's liberal members appeared skeptical of the government's claim that the ACLU lacks standing.

Justices Sonia Sotomayor and Ruth Bader Ginsburg worried that if they accepted the government's argument, no one would ever be able to challenge the law's constitutionality.

"Given that lawyers are unlikely to be the targets of an investigation, if their conversations would be intercepted, according to you they'd never have standing," Sotomayor said to Verrilli.

But Justice Antonin Scalia, a member of the court's conservative wing, seemed unfazed by the possibility. 

"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," Scalia said.

Verrilli argued that the ACLU cannot prove that the government would monitor their calls and that the group's case rests on speculation.

But Justice Elena Kagan suggested the precautions are reasonable given the scope of the government's surveillance powers under the law.

"Are you really going to tell me that you, as a lawyer, would just pick up the phone in the face of this statute and talk to these terrorists' associates?" she asked.

Justice Anthony Kennedy, a traditional swing vote on the court, seemed to agree.

"I think the lawyer would engage in malpractice if he talked on the telephone with some of these clients, given this statute," he said.

Chief Justice John Roberts and Justice Samuel Alito, two of the court's conservatives, argued that defense lawyers would take precautions to avoid government surveillance even without the FISA Amendments.  

"If you're representing someone who is being prosecuted, you don't send an email saying, you know, the government hasn't yet asked where you threw the gun, and we've got to be prepared to answer questions on that because, as you know, that's real probable. I mean, you don't send messages like that through the emails or just talk casually over the phone either," Roberts said.

If the court sides with the civil liberties groups, it would not overturn the FISA Amendments, but it would grant them the right to challenge the constitutionality of the law.

The Supreme Court held arguments on Monday despite the fact that other federal offices in Washington were closed due to Hurricane Sandy. The court has rescheduled Tuesday's arguments.