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Supreme Court hears oral argument in FISA Amendments Act standing suit

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Federal government top lawyer Donald Verrilli argued during Oct. 29 oral arguments before the Supreme Court that a group of lawyers, journalists and human rights researchers lack standing to challenge the constitutionality of the FISA Amendment Act.

In Amnesty et al v. Clapper, clients represented by the American Civil Liberties Union seek from the high court affirmation of a March 2011 Second District Court of Appeals opinion (.pdf) that plaintiffs have standing since they have "good reason to believe that their communications, in particular, will fall within the scope of the broad surveillance" permitted by the FISA Amendments Act. Opposition to the act stems in large measure from the extent to which intelligence agencies sweep up U.S. citizens' communications in the process of targeting foreign individuals.

During oral arguments, Solicitor General Verrilli said the act, which permits the warrantless interception of the electronic communications of suspected foreign state or terrorist agents located outside the United States, could be challenged on constitutional grounds by an individual who received official notice that the government plans to use FISA Amendments Act-derived data in judicial proceedings against him. A lawyer representing that person would also "be in a position at that point to act," Verrilli said.

But short of that, without the certainty that communications are being intercepted, the challengers lack standing, he said. "Respondents' claims about this statute depend on a cascade of speculation. This statute only grants authority. It doesn't command anything," he stated.

The government does use its authority under the act, Verrilli said, but "what is speculative is the connection between the grant of authority and a claim of injury."

Verrilli also argued that even if the FISA Amendments Act weren't invoked to make electronic interceptions, communications could be intercepted under other statues.

"You're saying that they will be overheard anyway, and, therefore, by preventing the government from overhearing them under this statute, we're not redressing their grievance, which is being overheard by the government," Justice Antonin Scalia said.

"That's precisely what I'm saying," Verrilli responded, although he later appeared to back down from that assertion to concentrate on arguing that "a concrete application of that authority has to be demonstrated" by plaintiffs before they should have standing to sue.

Jameel Jaffer, the ACLU attorney arguing the plaintiff's case, said that his clients have a "substantial risk" of their communications being intercepted under the act. "I don't think it would be enough for a plaintiff to walk into court and say the government is using the statute and therefore we have standing. But our plaintiffs are not in that position," he said.

In response to a question by Scalia of whether that assessment of risk takes into account the fact of Foreign Intelligence Surveillance Court review, Jaffer said the act forecloses that court "from imposing the kinds of limits that plaintiffs think the Fourth Amendment requires."

In response to a question from Chief Justice John Roberts on whether, since the act targets the communications of foreigners located abroad, the interception of the plaintiffs' "communications should be considered incidental, Jaffer notes that when the act was under debate in Congress in 2008, Bush administration officials threatened a veto "when it was proposed that Americans' communications should be segregated in some way."

"In the district court, the government was very upfront about this, that the statute's whole purpose was to regulate the surveillance of Americans' international communications," he said.

For more:
- read a transcript of the Amnesty et al v. Clapper oral argument (.pdf)
- go to the Supreme Court Amnesty et al v. Clapper docket webpage

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