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Supreme Court to Hear Electronic Surveillance Case

by Andrew P. Napolitano
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WASHINGTON, Oct. 26, 2012 —
Human Rights Groups Hope to Challenge Secret NSA Program

Larry Siems is a human rights advocate fighting a secret government program that he believes violates his constitutional rights. But before he can get into court with his claim, he has to clear a major hurdle.

On Monday, Siems' lawyers will try to convince the Supreme Court that he and several other human rights groups have the legal right to bring the case in the first place.

"It's an incredibly clever Catch-22," Siems says. "This is a secret program that monitors people. In order to challenge this program you would have to prove that you are monitored. You can't prove you are monitored because the program is secret."

Siems works for PEN International and often communicates via phone or computer with writers facing imprisonment in their home countries.

Joined by Amnesty International, the ACLU and other human rights groups, Siems challenges the constitutionality of amendments to the Foreign Intelligence Surveillance Act, passed in 2008, that expand the authority of federal officials to conduct secret overseas electronic surveillance of non-United States citizens located outside the United States. The groups say the program has the potential of sweeping up their communications with clients they are seeking to help abroad.

"Human rights work, especially advocacy on behalf of individuals who are in extreme situations, depends on confidentiality and a sense of mutual trust," says Siems.

He says he has had to stop communicating via phone or computer with some of his clients because he fears that his conversations will be swept up as part of the surveillance.

Jameel Jaffer, an attorney with the ACLU who is representing the groups, went to federal court in June 2008 arguing that the law violated the privacy and free speech rights of his clients. Jaffer says the law gives the government "sweeping new authority to collect Americans' international communications from telecommunications switches and other facilities inside the United States." Jaffer calls it a "dragnet surveillance of Americans" without the necessary safeguards to protect their constitutional rights.

But Jaffer was rebuffed when the federal district court ruled that the case could not proceed because the groups had failed to establish that they had the legal right — or "standing" in legalese — to bring the suit. Later, a federal appeals court disagreed, saying that the groups did have "standing" because they had established a "reasonable fear of injury" that their communications would be monitored.

Now, the Supreme Court is poised to make a final determination. At arguments on Monday, the justices will focus solely on the issue of standing.

The U.S. government will argue that the groups can't just speculate about the possibility of some potential future injury. They must show that their communications are actually — or could imminently — be monitored before they can get into court with the case. The government's position is that that the program targets only those people "reasonably believed" to be overseas, and it is not meant to intentionally target a person in the United States.

The law requires that the attorney general and the director of national intelligence periodically assess the government's compliance with the program.

In court papers, Solicitor General Donald B. Verrilli Jr. says that the groups who want to bring suit must demonstrate that the injury they face is "actual and imminent, not conjectural or hypothetical."

Heather Elliot, a professor at the University of Alabama School of Law who studies the issue of constitutional standing, is closely watching the case.

"Standing asks the question, 'What's it to you?'" she says. "In the biggest picture, it prevents someone who is just a busy body from taking up the court's time. But the doctrine has become so hyper technical that it keeps out more than just busy bodies. Here, the burden is on the plaintiffs."

Richard Samp of the conservative Washington Legal Foundation has filed a brief in support of the government. He argues that allowing the case to proceed through discovery would threaten and interfere with the ability of the government to protect national security.

"The government," Samp says, "in order to demonstrate that the plaintiffs aren't suffering injury, would have to reveal in court how it goes about engaging in surveillance. That kind of information would be very helpful to terrorists who would try to avoid being the subject of surveillance."

"Courts aren't supposed to give advisory opinions," Samp adds. "The role of the courts is to decide real disputes and until someone can demonstrate a real injury this is nothing more than an academic dispute."

Siems disagrees.

"It's a huge moment for us," he says. "The question is: If we don't have standing, who does?"

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