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Jonathan Hafetz
Jonathan Hafetz
Jonathan Hafetz is a professor at Seton Hall Law School.
Lawsuit challenges US surveillance powers
Judicial review of the Foreign Intelligence Surveillance Act amendment is important in reclaiming civil liberties.
Last Modified: 12 Jun 2012 13:22
The US government denying the Supreme Court's authority to review national security surveillance is dangerous [EPA]

New York, NY - The US Supreme Court recently announced it would hear a challenge to legislation expanding the government's power to conduct foreign intelligence surveillance. While the only issue presently before the Court concerns plaintiffs' standing to bring suit, the case raises important questions about the protection of constitutional liberties and the judiciary's role as a check against unlawful government action.

The case, Amnesty v. Clapper, was brought by the American Civil Liberties Union to challenge 2008 amendments to the Foreign Intelligence Surveillance Act (FISA). FISA was enacted in 1978 following revelations that the government had been spying on millions of Americans. For decades, the FBI and other agencies had targeted legitimate political opposition and civil rights activists in the name of defending the country against communism and other security threats. FISA required that the government obtain a warrant before engaging in foreign intelligence-related surveillance of Americans and created a special court and procedures to regulate government activity in this area. The act represented a compromise: it provided more lenient rules for foreign intelligence surveillance than for ordinary law enforcement investigations, but it also protected individual freedoms through carefully drawn limitations on the government's domestic surveillance powers.

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The 2008 FISA Amendments Act (FAA) guts that compromise. The FAA authorises the government to conduct dragnet surveillance of Americans' international communications. The FAA, to be sure, purportedly targets people overseas and not the telephone calls and emails of individuals located in the United States. But the international communications of American citizens and residents will inevitably be swept up in the mass acquisition orders that can now be obtained without individualised suspicion or judicial oversight. Under the FAA, the government can acquire thousands or even millions of US citizens or residents' overseas communications without ever identifying a specific target, even if the government knows in advance that all of the communications to be acquired will originate or terminate inside the United States.

The FAA, moreover, eliminates meaningful oversight by the Foreign Intelligence Surveillance Court (FISC), the special court created by FISA to oversee foreign intelligence surveillance. The FISC, for example, cannot alter or revoke its prior surveillance authorisations even if it believes the government has failed to comply with statutory limitations.

The FAA's practical effect is to provide the government a virtual blank check to monitor the international communications of US citizens and permanent residents.

The plaintiffs in Amnesty v. Clapper include journalists, attorneys, and human rights advocates. Their work often brings them into contact with people outside the United States whom the US government suspects are associated with terrorist organisations, who oppose governments supported economically or militarily by the United States, and who are located in areas that are a focus of US counter-terrorism efforts. The plaintiffs fear that their sensitive and sometimes privileged overseas communications with witnesses, confidential sources, experts, and others will be intercepted through the government's new dragnet surveillance powers. To minimise this risk, the plaintiffs have been forced to avoid communicating by phone or email and instead have had to undertake costly and burdensome steps, including travelling long distances for in-person meetings.

The FAA's creation of dragnet surveillance powers imperils the Constitution's safeguard against unlawful government surveillance of private communications and chills the free expression of ideas essential to a democracy. Yet, the government argues that the current challenge should be dismissed without any judicial review of the legality of the FISA amendments themselves.

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A federal appeals court in New York rightly rejected this argument and ruled that the plaintiffs' suit could proceed. It concluded that the plaintiffs' fear that the government would intercept their sensitive international communications was reasonable. Indeed, the appeals court found that such monitoring was a virtual certainty. The court further concluded that the plaintiffs had suffered concrete injuries through the costs expended to avoid surveillance conducted under the FAA. Although the appeals court did not address the merits of plaintiffs' challenge to the FAA, it took the important step of ensuring that the FISA amendments would be subject to judicial review. 

The government, however, is seeking to overturn that ruling and to block a federal court from assessing the legality of its new sweeping surveillance powers. The government argues that the plaintiffs lack standing because they cannot prove they have in fact been subjected to surveillance. Yet, it is unclear how anyone could ever challenge the FISA amendments under the government's theory since no one is informed that their communications are being or have been monitored under the FAA. Because the programme operates in secret, acceptance of the government's argument would immunise the government's surveillance powers from judicial review.

The government, moreover, argues that the harm plaintiffs have suffered is self-inflicted and cannot provide the requisite injury to bring suit. But plaintiffs have suffered concrete harms because they have expended additional time and resources to avoid the risk of government surveillance under the FAA. Their decision to engage in more burdensome methods of communication, moreover, is reasonable. What journalist, for example, would expect a confidential source in Syria or Egypt to communicate by email about a sensitive topic given her belief that the US government would monitor the conversation, potentially exposing the source to imprisonment or other harm if the United States shared the information with the source's government? What attorney representing a Guantanamo detainee accused of terrorism would expect to have a privileged telephone call with a witness located overseas who is providing information only because he believes the call is not being monitored?

The government's arguments against standing ignore how US power is perceived and a failure to appreciate the need for journalists and advocates to conduct their work free of the threat of dragnet government surveillance.

Judicial review of the FISA amendments will not alone safeguard individual liberty or prevent government misconduct. Even if the Supreme Court concludes that the plaintiffs have standing to sue, courts could subsequently agree with the government on the merits that dragnet foreign intelligence surveillance under the FAA does not violate the Constitution. 

But denying that courts have the power to consider the FAA's legality would be an even more dangerous step. It would eliminate judicial review of the government's national security surveillance powers and deny any role for the courts in evaluating legislation affecting core constitutional liberties.

Jonathan Hafetz is Associate Professor of Law at Seton Hall University School of Law and the author, most recently, of Habeas Corpus after 9/11: Confronting America's New Global Detention System.

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The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.

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