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Court blocks FISA challenge

Feb. 26, 2013 at 11:23 AM   |   Comments

WASHINGTON, Feb. 26 (UPI) -- The U.S. Supreme Court ruled 5-4 Tuesday a civil rights group does not have standing to challenge the government interception of foreign communications.

The decision fell along the high court's ideological fault line, with Justice Anthony Kennedy joining the four-member conservative bloc to form a majority.

At issue is the FISA Amendments Act, re-enacted by Congress in late December. The Foreign Intelligence Surveillance Act amendments authorize a special special court to allow surveillance between U.S. citizens and foreigners.

The act and the government put anyone trying to challenge the surveillance in a Catch-22 bind.

The Bush administration and 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.

But the program's target list is secret. The U.S. government won't tell potential targets whether they have been monitored. Therefore, the government contends, no one has standing.

A federal appeals court ruled the coalition had standing, and said the procedures mean surveillance orders can be "significantly broader. ... Under the [act] ... the plaintiffs allege that an acquisition order could seek, for example, all 'telephone and email 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.'"

But Justice Samuel Alito, writing for the majority, reversed the appeals court, saying the coalition did not have constitutional standing because the threat of injury was speculative.

Justice Stephen Breyer and the other three liberals dissented.

"The plaintiffs' standing depends upon the likelihood that the government, acting under the authority of [the act] will harm them by intercepting at least some of their private, foreign, telephone or email conversations," Breyer wrote. "In my view, this harm is not 'speculative.' Indeed it is as likely to take place as are most future events that common sense inference and ordinary knowledge of human nature tell us will happen."

The act provisions were challenged by a coalition led by the American Civil Liberties Union.

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