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Another controversial Bush-era policy survives legal challenge By Warren Richey
Supreme Court upholds anti-terrorism program, civil libertarians be damned
In a 5-to-4 decision, the high court said that the individuals were relying on speculation and fear of possible surveillance under the US program and were unable to demonstrate that they faced an actual or imminent injury.
Under Supreme Court case law, legal standing is established if a party suffers an injury that must be "concrete, particularized, and actual or imminent; fairly traceable to the challenge action; and redressable by a favorable ruling."
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In a dissent, Justice Stephen Breyer took issue with the majority's use of the words "certainly impending."
"We need only assume that the government is doing its job (to find out about, and combat, terrorism) in order to conclude that there is a high probability that the government will intercept at least some electronic communications to which at least some of the plaintiffs are parties," Justice Breyer wrote.
The decision blocking the lawsuit drew immediate criticism.
Peter Godwin, president of the PEN American Center, called the opinion "a Kafkaesque holding that puts writers, journalists, human rights workers on notice that the US government can look over their shoulders anywhere in the world and there is nothing they can do about it."
"This ruling insulates the statute from meaningful judicial review and leaves Americans' privacy rights to the mercy of the political branches," said Jameel Jaffer, deputy legal director of the American Civil Liberties Union, who argued the case in October.
The decision stems from a constitutional challenge to a 2008 amendment to the Foreign Intelligence Surveillance Act.
The lawsuit was filed by the ACLU on behalf of various groups and individuals — including four lawyers, human rights workers with Amnesty International and Human Rights Watch, and two journalists working for The Nation magazine.
The plaintiffs said the law insulates the government's surveillance activities from meaningful judicial review.
The 2008 surveillance law is intended to enable the US government to detect and track the messages of would-be terrorists. Critics say it is overly broad and sweeps in private communications of Americans who may be in contact with potential targets of US surveillance.
These critics contend that the law is unconstitutional because it bypasses the long-established requirement that the government demonstrate to a neutral judge that there is probable cause to justify the surveillance of a particular individual. That justification must be presented before the government can start collecting intelligence.
In contrast, the new foreign-surveillance law allows the government to intercept and store substantial volumes of communications information — including communications involving US citizens — without an individualized warrant.
Officials must pledge that the target of the intelligence gathering is a foreign person and that it will attempt to minimize any incidental information collected about Americans.
The judicial oversight of this process involves review of the protective procedures, rather than review of the government's actual surveillance of individuals.
The group of lawyers, journalists, and human rights workers sought to have the law declared unconstitutional. They argued that their work put them in frequent contact with individuals likely to be targeted for electronic surveillance.
To counteract that threatened invasion of their private communications, they began traveling overseas to conduct face-to-face meetings rather than risk having their communications intercepted by the US government.
A federal judge threw the case out, ruling that the lawyers, journalists and human rights workers lacked the necessary standing to bring the lawsuit. The group, the judge said, could not demonstrate that they have suffered actual harm because it is not clear that they were ever subject to surveillance and it is merely speculative that they might be subject to it in the future.
On appeal, a panel of the Second Circuit Court of Appeals in New York reversed, ruling that members of the group had suffered a concrete injury because of the extra international travel they had undertaken in an attempt to avoid US surveillance of their telephone and Internet communications.
In reversing that decision, the high court said the appeals court erred in considering the extra costs and burdens sustained by the individuals in trying to shield their own communications from surveillance.
To allow legal standing based on a party's fear of possible government action would water down the fundamental requirements of who is entitled to litigate an issue in federal court. "Respondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending," Justice Alito wrote.
Alito was joined in the majority by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas.
Breyer's dissent was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.
The case was James Clapper, Director of National Intelligence v. Amnesty International (11-1025).
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