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SCOTUS to Hear Case Challenging NSA Warrantless Wiretapping Program

"The constitutionality of the government’s surveillance powers can and should be tested in court."

In an issue that has already had a lot of legal back-and-forth, the Supreme Court of the United States has agreed to hear a case that would decide if the American Civil Liberties Union and other groups can even challenge the National Security Administration's ability to eavesdrop without a warrant.

Wired reports the Obama Administration is arguing the ACLU, Amnesty International, Global Fund for Women, Global Rights, Human Rights Watch, and International Criminal Defence Attorneys Association don't have the right to challenge the FISA Amendments Act of 2008 as they are not necessarily the subject of NSA wiretapping themselves.

Wired notes that the original bill signed into law in June 2008 was immediately challenged by the ACLU and others. A lower court ruled the groups could not challenge the law as they couldn't prove the people they were communicating with were overseas, which would therefore make their emails and phone calls potentially subject to warrantless review. The groups then brought the case to an appeals court with some journalists among them arguing the law violated fourth amendment rights and "chilled" their speech. Last year, the 2nd U.S. Court of Appeals agreed that this could in fact be the case, but Wired points out the court did not "rule on the merits of the case" leaving the groups with "legal standing to pursue their claim."

Here's what the Obama Administration had to say at this time in its petition to the Supreme Court to overturn this ruling:

Respondents’ inability to show an imminent interception of their communications cannot be cured by the asserted chilling effect resulting from their fear of such surveillance,” the government wrote (.pdf) the Supreme Court in a petition.

Wired reports that in agreeing to hear the case, this is "the first time the Supreme Court has agreed to review any case touching on the eavesdropping program that was secretly employed in the wake of 9/11 by the Bush administration."

Yesterday, the ACLU Deputy Legal Director Jameel Jaffer said in a statement, "The appeals court properly recognized that our clients have a reasonable basis to fear that the government may be monitoring their conversations, even though it has no reason to suspect them of having engaged in any unlawful activities. The constitutionality of the government’s surveillance powers can and should be tested in court. We are hopeful that the Supreme Court will agree."

ACLU Legal Director Steven Shapiro seconded this sentiment saying he isn't surprised that the Supreme Court has agreed to hear the case but expressed disappointment that the administration is trying to "insulate the broadest surveillance program ever enacted by Congress from meaningful judicial review."

In its statement on the Supreme Court's decision to hear the case, the ACLU states that "little is known" about the use of the FISA Amendment Act and notes through a Freedom of Information Act request it found there were "compliance incidents" during six-month reviews of the act. To the ACLU, these incidents hint at "either an inability or an unwillingness to properly safeguard Americans’ privacy rights."

Wired reports that even if the Supreme Court decides the ACLU and other plaintiffs have the right to challenge the wiretapping law, it might not result in the change they're seeking:

The lawsuit would return to the courtroom of U.S. District Court Judge John G. Koeltl in New York, where, if past is prologue, the Obama administration likely would play its trump card: an assertion of the powerful state secrets privilege that lets the executive branch effectively kill lawsuits by claiming they threaten to expose national security secrets.

The ACLU wants amendments to the act that would "limit surveillance to suspected terrorists and criminals, require the government to be more transparent about how the law is being used and place stronger restrictions on the retention and dissemination of information that is collected."

One last thing…
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