High Court Weighs Surveillance Suit

By JESS BRAVIN

WASHINGTON—The Supreme Court began weighing Monday whether to permit a lawsuit that challenges government surveillance of communications between people in the U.S. and abroad, a program that plaintiffs say infringes on the rights of lawyers, journalists and human-rights activists to do their jobs.


The broad powers, which Congress authorized in 2008, allow the government to conduct mass surveillance of international communications after certifying to a secret court that the program's "significant" purposes include obtaining foreign intelligence, among other factors.


Defenders of the 2008 law, which relaxed limits on surveillance authority in place since 1978, call it an important tool for national security after the Sept. 11, 2001, terrorist attacks. They say it retains adequate safeguards against unnecessary intrusion on Americans' privacy.


The challengers include lawyers who represent suspected terrorists, journalists who cover national security and groups such as Amnesty International and Human Rights Watch, who say their work depends on confidential communications with clients and sources. They say they must assume their phone and email conversations with clients are being monitored, forcing them to avoid discussing sensitive matters by telephone or email and instead travel abroad for in-person meetings. The challengers say those burdens violate the Fourth Amendment's prohibition of "unreasonable searches."


The Supreme Court isn't considering the constitutionality of the surveillance program, but rather whether the challengers are permitted to pursue their lawsuit at all. The suit was allowed to proceed by the Second U.S. Circuit Court of Appeals in New York, but the government appealed, arguing that the challengers can't prove they are being monitored.


The plaintiffs don't allege they are in the suit being targeted directly by the government, but say their discussions with people overseas could be caught by the surveillance.


Solicitor General Donald Verrilli, the government's chief litigator, told the justices that the plaintiffs had no standing to sue because they couldn't show their communications have been intercepted. The only potential plaintiffs who could legitimately sue, Mr. Verrilli suggested, would be criminal defendants, if the government used the surveillance information in a prosecution, or a telecommunications provider whose network was tapped.


That position troubled several liberal justices, because the classified nature of the program means that no one is likely to be able to prove such surveillance.


Justice Stephen Breyer observed that according to one plaintiff's statement, disclosures in a criminal prosecution revealed that under prior surveillance authority the government had "intercepted some 10,000 telephone calls and 20,000 email communications involving his client." With Hurricane Sandy approaching Washington, Justice Breyer asked whether it was almost as certain as the storm's arrival that the client's communications would be intercepted again.


Mr. Verrilli said that even if they are being monitored, the plaintiffs' clients can only speculate that the government is doing so using its powers under the 2008 law rather than any of myriad other surveillance programs that aren't challenged in the lawsuit.


Justice Anthony Kennedy, who in this case as in many others seems likely to hold the deciding vote, said the surveillance authority burdened defense attorneys, even if they weren't certain their communications had been intercepted. "I think the lawyer would engage in malpractice if he talked on the telephone with some of these clients, given this statute," Justice Kennedy said.


But other conservatives indicated less concern. "We've had cases in the past where it is clear that nobody would have standing to challenge what is brought before this court," said Justice Antonin Scalia. "That just proves that under our system of separated powers, it is none of our business."


After Sept. 11, President George W. Bush authorized intelligence agencies to bypass the 1978 Foreign Intelligence Surveillance Act, which required officials to obtain warrants from a secret court established by the statute before intercepting telecommunications originating or terminating in the U.S.


That program's legality was hotly disputed within the administration and, once it was exposed by news reports, Mr. Bush sought and received congressional authorization to proceed with a modified version.


The 2008 statute he signed abolished many of the safeguards Congress had adopted 30 years earlier. It eliminated requirements that the government establish a basis for suspicion of individuals, permitting instead blanket surveillance of places or methods of communication.


A decision in the case, Clapper v. Amnesty International, is expected before July.