Under the U.S. Supreme Court: Sssh -- Uncle Sam is listening

By MICHAEL KIRKLAND  |  May 22, 2011 at 3:31 AM
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WASHINGTON, May 22 (UPI) -- The American Civil Liberties Union and the Obama administration, two big bulls in the courtroom, have locked horns in a legal battle on the U.S. government's warrantless wiretapping of international phone calls and e-mails.

But the debate at this stage isn't about the constitutionality of the practice -- or whether the privacy intrusion is balanced by the government's genuine responsibility to combat terror.

Instead, it's about one of those legal sinkholes where logic and proportion have fallen sloppy dead. If you were asking for directions, it's the judicial equivalent of being told you can't get there from here.

Here's the rub.

To challenge a government practice or law as unconstitutional, one has to have "standing." One acquires standing -- the right to sue -- by showing injury.

Initially the Bush administration and now the Obama Justice Department 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, no one has standing. Problem solved.

The ACLU 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 -- including Amnesty International, Human Rights Watch, the Global Fund for Women and others, including attorneys.

But a federal judge dismissed the case, agreeing with the government that the plaintiffs didn't have standing.

A three-judge federal appeals court panel in New York saw the case differently when it heard it last March.

The 1978 Foreign Intelligence Surveillance Act was enacted after Watergate. It lets the government, under a special court's supervision, 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 terror attacks, expanded FISA to let the FBI get the personal records of suspects from libraries and Internet Service Providers.

The ACLU says the 2008 FISA Amendments Act, abbreviated in court records as FAA, was a real game changer.

Originally, FISA required federal officials to get authorization to conduct surveillance for foreign intelligence. It created the Foreign Intelligence Surveillance Court, which gave the authorization. The application 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 the appeals court noted the ACLU plaintiffs pointed out two 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 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.

As for standing, 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."

The ACLU coalition had argued its members could show injury, that some lawyers had to go overseas to talk to clients and all had to expect they would be future targets of surveillance.

"The plaintiffs have demonstrated that they suffered present injuries in fact -- concrete economic and professional harms -- that are fairly traceable to the FAA and redressable by a favorable judgment," the three-judge appeals panel said in its unanimous decision. "The plaintiffs need not show that they have been or certainly will be monitored. Indeed, even in cases where plaintiffs allege an injury based solely on prospective government action, they need only show a 'realistic danger' of 'direct injury' ... and where they allege a prospective injury to First Amendment rights, they must show only 'an actual and well-founded fear' of injury ... "

The appeals panel agreed with the ACLU plaintiffs they had standing, but even if the ruling stands, a trial court must begin hearing arguments on the merits of the challenge. That might not happen for some time.

Predictably, The New York Times was celebratory over the appeals panel verdict. In a March editorial, the newspaper said, "The final outcome of this legal challenge is far from certain; the government, if it follows its pattern, is likely to cite another familiar defense that a full trial would reveal state secrets. But just by allowing this lawsuit to proceed, the (appeals court panel) has sent an important message: The government cannot count on simplistic legal arguments to avoid scrutiny of its program to spy on civilians. When one challenge is allowed, others will follow."

Just to emphasize that the legal outcome was "far from certain," the Justice Department earlier this month asked the 11 judges on the full 2nd U.S. Circuit Court of Appeals to rehear the case decided by the three-judge panel.

The department could have gone directly to the U.S. Supreme Court to ask for review, and may still do so if it loses in the full 2nd Circuit.

Meanwhile, the ACLU said the FBI has been balking about releasing surveillance information, despite a suit under the Freedom of Information Act. The ACLU wants the identities of ISPs, phone companies and other telecommunications elements cooperating in the warrantless surveillance program.

In a court filing, the FBI said it could not release the information because, "The stigma of working with the FBI would cause customers to cancel the companies' services and file civil actions to prevent further disclosure of subscriber information," the ACLU said.

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