U.S. Supreme Court

Supreme Court to Consider Right to Sue in Challenge to Wiretap Law


In oral arguments on Monday, the U.S. Supreme Court will consider whether a group of lawyers, human rights groups and journalists have standing to challenge a warrantless wiretapping law.

The 2008 law authorizes the National Security Agency to monitor international emails and phone calls without a warrant for each target, according to Reuters and a press release by the American Civil Liberties Union, which is representing the plaintiffs.

ACLU deputy legal director Jameel Jaffer argues that the New York City-based 2nd U.S. Circuit Court of Appeals was correct when it ruled the plaintiffs may challenge the law because they faced a substantial risk their communications would be monitored and took costly measures to avoid it.

“We are hopeful that the Supreme Court will agree with the Court of Appeals that the constitutionality of the government’s surveillance powers can and should be tested in court,” Jaffer says in the press release.

The government argues that the plaintiffs don’t have standing because the surveillance is secret and they cannot prove they were harmed. A Slate column predicts the government will win, if the Supreme Court “holds to its modern, skeptical view of standing.”

But doesn’t mean the law can never be challenged, the Slate article says. “If the government prosecutes a target using information obtained from surveillance, that person will be able to argue that the introduction of the evidence would violate his constitutional rights. However, if the government avoids bringing such cases, then people who are spied on will be out of luck.”

A New York Times editorial offers a different view. “It would not require a legal stretch for the court to find that the plaintiffs had standing to sue,” the article says.

The case is Clapper v. Amnesty International.

Prior coverage:

ABAJournal.com: “Supreme Court to Consider Standing in ACLU Suit Challenging ‘Dragnet Surveillance’ ”

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