U.S. Supreme Court justices on Monday questioned the legitimacy of a law allowing a secretive government surveillance program and the assertion by a government lawyer that some groups couldn't challenge the law in court because they don't know if they've been spied on.
U.S. Solicitor General Donald Verrilli told the court that groups including Amnesty International, Human Rights Watch and lawyers for terrorism suspects had no standing to challenge the FISA Amendments Act, a 2008 law that gave the U.S. National Security Agency broad new surveillance authority, because they had no proof they were targets of the surveillance.
The groups have relied on a "cascade of speculation" to make a case that they have been spied on and therefore have the right to claim their rights against unreasonable searches have been violated, he told the court. The groups are asking the court to invalidate the law "without a single fact to validate the assertions" of spying, he said.
Most of the nine justices questioned how anyone would then have standing to challenge the constitutionality of the law. Targets of the NSA surveillance, which can include U.S. residents telephoning or exchanging email with suspected terrorists, only learn of the surveillance when they're being charged with a crime, said Justice Sonia Sotomayor.
"Is there anybody who has standing?" she said. "No one could ever stop [the surveillance] until they were charged with a crime."
In March 2011, the U.S. Court of Appeals for the Second Circuit ruled that Amnesty International and the other groups had the right to challenge the constitutionality of the law. The U.S. government has challenged that decision.
Verrilli argued that the U.S. Congress, in passing the FISA Amendments Act, put a number of safeguards in place. A Foreign Intelligence Surveillance Court judge must normally approve the surveillance, and Congress has substantial oversight of the program, he said. Surveillance cases covered by the FISA Amendments Act generally contain classified information, and there may be no good way to challenge that surveillance in court, he said.
The Supreme Court, in earlier cases involving challenged government actions, has required that the injuries alleged had to have occurred or be "certainly impending." The coalition of groups challenging the FISA Amendments Act have only speculated that they have been targets of the surveillance, he said.
But some of the groups challenging the law have a reasonable expectation that they are surveillance targets, said Justice Stephen Breyer. One of the lawyers challenging the law represents a suspect who has had 10,000 phone calls tapped and 20,000 email messages intercepted under other programs, he noted.
If the NSA is doing its job, it's "almost nearly certain" that the lawyer has been the target of surveillance under the FISA Amendments Act, he said.
But the groups challenging the law may have already been spied upon before the 2008 law, Verrilli said. If a person was spied upon under another program, he doesn't have the standing to challenge the FISA Amendments Act, Verrilli said.
Justice Antonin Scalia suggested Verrilli was parsing the injury suffered by the groups challenging the law. "Do you know any case where we cut the bologna that finely?" he said. "What you're saying is, they will be injured anyway."
Justices also questioned the position of American Civil Liberties Union lawyer Jameel Jaffer, representing the groups challenging the law. Jaffer told the court that the groups had a "substantial risk" of being surveillance targets.
But there's a "huge difference" between a substantial risk and certainly impending, the standard the court has recognized in the past, said Chief Justice John Roberts. "The whole question is whether your clients have been injured," Roberts said.
The groups challenging the law make international phone calls and send email messages to people who are likely the targets of NSA surveillance, Jaffer said. "We know that the government is using this statute," he added.
Justices asked what injuries the groups have experienced. In some cases, journalists have predicted they won't be able to get the same information from international sources, and lawyers have had to curtail telephone calls or talk in generalities with clients, Jaffer said. In other cases, groups have had to travel internationally instead of use the telephone or email, he added.
Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's e-mail address is grant_gross@idg.com.