The justices have agreed to hear argument next term on whether a group of organizations and individuals has "standing" to challenge the latest version of the Foreign Intelligence Surveillance Act. To challenge a government practice or law as unconstitutional, you to have "standing." You acquire standing -- the right to sue -- by showing an injury.
In the simplest terms, the law allows the government to eavesdrop on U.S. electronic communications -- phone calls, e-mails and other forms -- without a warrant in the United States as long as one end of the communication is outside the United States.
The Bush administration and now the Obama Justice Department have argued individuals and organizations must be able to show they were monitored by the surveillance program to have standing and challenge it in court.
But the program's target list is secret, and the U.S. government won't tell potential targets whether they have been monitored. Therefore, the government argued, no one has standing.
The American Civil Liberties Union first filed suit challenging the 2008 FISA Amendments Act in July of that year on behalf of a broad coalition of plaintiffs who routinely contact people overseas. The government defendants are now headed by James R. Clapper Jr., in his official capacity as director of national intelligence, Keith B. Alexander, in his official capacity as director of the National Security Agency and chief of the Central Security Service, and U.S. Attorney General Eric H. Holder Jr.
A federal judge dismissed the initial case, agreeing with the government the ACLU plaintiffs didn't have standing. However, a three-judge federal appeals court panel in New York saw the case differently when it handled it in March 2011.
The 1978 Foreign Intelligence Surveillance Act was enacted after the Watergate scandal. Under a special court's supervision, it lets the U.S. government secretly eavesdrop on U.S. citizens and others in the United States in intelligence investigations, especially when someone communicates with a foreign agent. It was originally passed to allow the government to collect foreign intelligence information involving communications with "agents of foreign powers."
The 2001 Patriot Act, enacted after the Sept. 11, 2001, terror attacks, expanded FISA to let the FBI get the personal records of suspects from U.S. libraries and Internet Service Providers.
The real game changer came in 2008. The FISA Amendments Act, abbreviated in court records as FAA, was enacted that year.
"Then-Sen. and presidential candidate Barack Obama voted for the measure, though he said the bill was flawed and that he would push to amend it if elected," an article published in Wired magazine last week said. "Instead, Obama, as president, simply continued the Bush administration's legal tactics aimed at crushing any judicial scrutiny of the wiretapping program."
FISA originally required U.S. officials to get authorization and created the Foreign Intelligence Surveillance Court, which gave the authorization. The application also had to be approved by the U.S. attorney general, and had to include, among lots of other information, the identity, if known, or description of the individual to be monitored and the basis for believing the target was a foreign agent, and that a foreign power or foreign agent was using or about to use each of the facilities targeted.
The 2008 FAA left much of the FISA framework intact, but there were two crucial differences between the original FISA system and the new FAA regime.
"First, whereas under the pre-existing FISA scheme the government had to submit an individualized application for surveillance identifying the particular target, facility, type of information sought, and procedures to be used," the appeals court said, "under the FAA, the government need not submit a similarly individualized application -- it need not identify the particular target or facility to be monitored ... .
"Second, whereas under the pre-existing FISA scheme the [FISA court] had to find probable cause to believe both that the surveillance target is a 'foreign power' or agent thereof and that the facilities to be monitored were being used or about to be used by a foreign power or its agent, under the FAA the [FISA court] no longer needs to make any probable-cause determination at all. Instead, the [FISA court] simply verifies that the government has made the proper certifications."
The federal appeals court said the new procedures mean surveillance orders can be "significantly broader. ... Under the FAA, by contrast, the plaintiffs allege that an acquisition order could seek, for example, all 'telephone and e-mail communications to and from countries of foreign policy interest -- for example, Russia, Venezuela or Israel -- including communications made to and from U.S. citizens and residents.'"
Moreover, the original FISA scheme required ongoing judiciary review of whether the government was complying with the law. Under the FAA, compliance is monitored by the executive -- the U.S. attorney general and the director of national intelligence, who make reports to the FISA court.
The appeals court said, "A citizen who dislikes a particular law may not require a court to address its constitutionality simply by stating in a complaint his belief, however deeply held, that the law is inconsistent with some provision of the Constitution" -- but it still ruled that the ACLU group had standing.
"The plaintiffs' uncontroverted testimony that they fear their sensitive international electronic communications [are] being monitored and that they have taken costly measures to avoid being monitored -- because we deem that fear and those actions to be reasonable in the circumstances of this case -- establishes injuries in fact," the appeals court said, "that we find are causally linked to the allegedly unconstitutional [FISA Amendments Act]. We therefore find that plaintiffs have standing to challenge the constitutionality of the [act] in federal court."
The ACLU group includes Amnesty International USA, the Global Fund for Women, Global Rights, Human Rights Watch, the International Criminal Defense Attorneys Association, The Nation Magazine, PEN American Center, the Service Employees International Union, the Washington Office on Latin America and several individuals.
The Supreme Court, in a one-sentence order last week without comment, said it would review the appeals court ruling on standing.
In its successful petition to the high court, the government asked the justices to determine "whether [the ACLU plaintiffs] lack Article III [constitutional] standing to seek prospective relief because they proffered no evidence that the United States would imminently acquire their international communications using [the law] ... and did not show that an injunction prohibiting [the law] would likely redress their purported injuries."
The conservative Washington Legal Foundation filed a friend-of-the-court brief on behalf of former U.S. Attorneys General William Barr, Edwin Meese and Dick Thornburgh. The brief argued the case threatens the ability of the government to protect national security.
But the ACLU group said in its own brief, the FAA of 2008 now "does not require the government to demonstrate to the FISA Court that its surveillance targets are foreign agents, engaged in criminal activity or connected even remotely with terrorism. Indeed, the statute does not require the government to identify its surveillance targets at all."
The FAA has a "sunset" provision -- it's due to lapse on New Year's Eve. Among its provisions is immunity from lawsuits for the telecommunications companies who cooperate with the government in the surveillance.
Rep. Ron Paul, R-Texas and a dormant GOP presidential candidate, and his supporters have pledged to oppose and expose any member of Congress of either party who votes to re-enact.
But the ACLU reported last week: "This afternoon the Select Senate Committee on Intelligence will be secretly approving legislation to extend [the FISA Amendments Act]. No public hearings; no public oversight; no thorough debate about how this law has been used and how it has affected Americans."