The Supreme Court says it will hear a case about the government's little-known foreign surveillance program.
The Supreme Court says it will hear a case about the government's little-known foreign surveillance program.

Story highlights

Justices to hear appeal from ACLU about constitutionality of electronic monitoring

Key question: Can certain people challenge law without showing they've been monitored?

Plaintiff argues that the National Security Agency won't disclose specifics, calls it a "Catch-22"

Oral arguments will be heard this fall

Washington CNN —  

The Supreme Court said Monday that it will tackle a major national security and privacy dispute involving the government’s little-known foreign surveillance program.

The justices announced they would hear an appeal from the American Civil Liberties Union, representing a coalition of “United States persons” – attorneys, journalists and labor, legal, media and human rights organizations.

Oral arguments will be heard this fall.

The larger issue involves the constitutionality of the federal government’s electronic monitoring of targeted foreign people. A federal appeals court said the domestic plaintiffs who deal with overseas clients and co-workers reasonably feared the government was reading and hearing their sensitive communications, and those groups had taken costly measures to avoid such intrusions.

That New York-based three-judge panel last year ruled against the Obama administration proceeding.

The specific question now to be addressed by the high court is whether certain Americans have “standing” to challenge the federal law, without a specific showing they have been monitored. Plaintiffs say the National Security Agency has in turn refused to disclose specifics. The ACLU calls that “Catch-22” logic.

“Given the importance of this law, the Supreme Court’s decision to grant review is not surprising,” said Steven R. Shapiro, the group’s legal director. “What is disappointing is the Obama administration’s effort to insulate the broadest surveillance program ever enacted by Congress from meaningful judicial review.”

The Justice Department had strongly urged the high court to intervene and ultimately dismiss the lawsuit.

The Foreign Intelligence Surveillance Act (FISA) was revised by Congress in 2008 to give the attorney general and the director of national intelligence greater authority to order “mass acquisition” of electronic traffic from suspected foreign terrorists or spies.

The law previously required the government to justify a national security interest before any monitoring of phone calls and e-mails originating in another country. A federal judge had to sign any search warrant. President Bush then suspended that requirement after the 9/11 terrorist attacks in 2001, a move that was not revealed publicly.

After such “warrantless wiretapping” was exposed, the president and his congressional allies moved to amend the existing law, which supporters say is designed to target only foreigners living outside the U.S.

The ACLU argued in court that it appears that little is known about the FISA Amendments Act, such as who has been targeted, how often it has been used and whether any problems or abuses have occurred.

“The constitutionality of the government’s surveillance powers can and should be tested in court,” said Jameel Jaffer, the ACLU’s deputy legal director. “We are hopeful that the Supreme Court will agree.”

Privacy groups worry that such electronic dragnets could easily and unknowingly intrude on the privacy rights of U.S. citizens. The government calls that “speculation” but cites national security in refusing to provide specifics.

The justices are likely to focus mainly on the “standing” question, and whether the ACLU lawsuit should move ahead. The broader constitutional privacy questions may not be addressed for perhaps another couple of years.

The case is Clapper v. Amnesty International USA (11-1025).