Under the U.S. Supreme Court: Spying on Americans, phase 2

By MICHAEL KIRKLAND, UPI Senior Legal Affairs Correspondent
Director of National Intelligence James Clapper arrives for a Senate (Select) Intelligence Committee hearing on the Benghazi terrorist attack and regional intelligence and security on Capitol Hill in Washington DC on November 15, 2012. -- UPI/Kevin Dietsch
Director of National Intelligence James Clapper arrives for a Senate (Select) Intelligence Committee hearing on the Benghazi terrorist attack and regional intelligence and security on Capitol Hill in Washington DC on November 15, 2012. -- UPI/Kevin Dietsch | License Photo

WASHINGTON, Jan. 6 (UPI) -- Congress ended the suspense and re-enacted the FISA Amendments Act in late December, giving the U.S. Supreme Court, which has already heard argument on one aspect of the law, a living controversy to chew on.

Without congressional action, some key provisions of the law, known as the FAA in court documents, would have expired Tuesday. President Obama has signed the legislation into law.


Reaction to the five-year extension of the surveillance, which was never in any serious doubt, predictably has been mixed. Conservatives and others praise the extension as a bipartisan effort to protect the nation from terror. Liberals and civil libertarians tend to see it as a privacy disaster.

The Washington Times points out the FAA, having previously been approved by the U.S. House, passed the U.S. Senate with votes from both parties.


"Despite the bitter partisanship that has gripped Capitol Hill this Congress, the vote to extend FISA was unusually bipartisan, as 42 Republicans, 30 Democrats and one independent supported the measure," the newspaper said. "On the 'nay' side, a mix of liberal Democrats and conservative Republicans joined forces."

The act allows U.S. surveillance of foreign terror suspects, the Times said, adding, "Americans can get swept up in an investigation if officials think they are in contact with a terrorism suspect."

In a commentary posted online in Commentary, Max Boot said, President George W. Bush "had torn down the wall which had prohibited monitoring foreign terrorists' communications with people in the U.S. absent a court order. This had become controversial when it was publicly revealed, but Congress stepped in to provide the authority needed. Now Congress has extended that authority, and in so doing, senators turned back numerous attempts by lawmakers on both the far-left and far-right to stop or water down this legislation, which is badly needed by our intelligence agencies."

Boot, the Jeane J. Kirkpatrick Senior Fellow in National Security Studies at the Council on Foreign Relations in New York, added, the "fact is that President Obama has continued most of the anti-terrorism measures begun under the previous administration and he has done so with the support of the Democratic-controlled Senate. That is good for the fight against terrorism and good for the country in general."


But Alex Pareene wrote in Salon magazine: "Congressional dysfunction and extremism may yet plunge the nation into an entirely avoidable recession, but at least Americans will likely be able to sleep at night secure in the knowledge that our lawmakers sprang into action at the last possible minute to preserve the government's right to constantly spy on everyone without telling anyone about it. ...

"The FISA Amendments Act makes a joke of the entire Fourth Amendment 'warrant' requirement, as the government now can seek 'programmatic warrants' that allow them to indiscriminately collect massive amounts of data from broadly defined 'targets' over the course of a year."

He added: "The program is now set to last beyond [the Obama] presidency. I'm sure when it comes up again, the Senate 'debate' will be just as edifying. But look on the bright side: Maybe by then forced austerity measures will leave us unable to pay for a massive unaccountable national surveillance state."

And the American Civil Liberties Union, which represented a coalition of lawyers of civil liberties groups challenging FAA in the courts, said on its website: "The Senate today reauthorized the FISA Amendments Act of 2008, an unconstitutional spying bill that violates the Fourth Amendment and gives vast, unchecked surveillance authority to the government. The FISA Amendments Act Reauthorization Act ... passed on a 73-23 vote, authorizes the National Security Agency to conduct dragnet surveillance of Americans' international emails and phone calls."


The ACLU noted Sen. Dianne Feinstein, D-Calif., "pledged to work with Sen. Jeff Merkley, D-Ore., over the next year to publicly disclose how the Foreign Intelligence Surveillance Court interprets the FISA Amendments Act."

The ACLU said it will be watching too.

The Supreme Court heard argument on one aspect of the act Oct. 29 -- whether the ACLU coalition has standing to challenge the act, and a ruling may be coming soon. Most court observers, like, said the argument showed the high court closely divided.

There appeared "to be a distinctive lineup of justices on opposite sides of whether anyone could sue over the program, with four looking for a way to recognize that option for someone, and four skeptical about drawing the courts into the oversight of a highly sensitive national security program," SCOTUSBLOG said. "As is often the case, that made it seem that ... Justice Anthony M. Kennedy would be holding the decisive vote on the question."

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

You have to show you were "injured" to have "standing" to challenge a government action.


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. The U.S. government won't tell potential targets whether they have been monitored. Therefore, the government contends, no one has standing.

The 1978 Foreign Intelligence Surveillance Act was adopted after the Watergate scandal. Under a special court's supervision, it let 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 targets from U.S. libraries and Internet service providers.

The real change came in 2008. The FISA Amendments Act was enacted that year and extended the act for five more years.

Now the law allows the government to eavesdrop on U.S. electronic communications -- phone calls, emails and other forms -- without a warrant in the United States as long as one end of the communication is outside the United States.


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. The government defendants are now headed by James R. Clapper Jr., as director of national intelligence; Keith B. Alexander, 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, saying the ACLU plaintiffs didn't have standing. However, a three-judge federal appeals court panel in New York ruled the other way when it handled the case in March 2011, saying the coalition did have standing.

The 2008 FAA left much of the FISA framework intact, the appeals court said, 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 ... 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.'"

In addition, the original FISA scheme required ongoing judiciary review on 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 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."


After the appeals court ruling, the government successfully asked the Supreme Court for review.

The ACLU coalition 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.

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