New York Times

October 29, 2012

Challenge to Wiretaps is Heard by Justices

By ADAM LIPTAK

WASHINGTON — A challenge to a federal law that authorized intercepting international communications involving Americans appeared to face an uphill climb at the Supreme Court on Monday, but not one quite as steep as many had anticipated.

The question in the case was whether journalists, lawyers and human rights advocates could show they had been harmed and so had standing to sue, and several justices seemed open to the idea.

If the case is dismissed for lack of standing, there is a fair prospect that the Supreme Court will never rule on the constitutionality of the law, a 2008 measure that broadened the government’s power to eavesdrop on international communications. The law, an amendment to the Foreign Intelligence Surveillance Act, was passed after the 2005 disclosure of the Bush administration’s secret program to wiretap international communications of people inside the United States without obtaining court warrants. The electronic spying, intended to help pursue terrorists, began after the Sept. 11, 2001, attacks.

The 2008 law was challenged by Amnesty International, the American Civil Liberties Union and other groups and individuals, including journalists and lawyers who represent prisoners held at Guantánamo Bay, Cuba. The plaintiffs said the law violated their rights under the Fourth Amendment by allowing the government to intercept their international telephone calls and e-mails. Some of the plaintiffs said they now meet clients or sources only in person.

The possibility that the courts may never rule on the constitutionality of the law seemed to rankle some of the justices. “Is there anybody who has standing?” Justice Sonia Sotomayor asked.

Solicitor General Donald B. Verrilli Jr. said there might be if the government sought to introduce evidence in a criminal proceeding that it had gathered under the law. Justice Ruth Bader Ginsburg said that was unlikely given the nature of the surveillance. “I see the theoretical possibility,” she said, “but I don’t see a real person who would be subject to a federal charge who could raise an objection.”

Justice Antonin Scalia responded that some laws are beyond judicial review. “We’ve had cases in the past where it is clear that nobody would have standing to challenge what is brought before this court,” he said. “That just proves that under our system of separated powers, it is none of our business.”

Justice Elena Kagan pressed Mr. Verrilli on whether he or any other competent and ethical lawyer should communicate with clients and sources in the face of the possibility of government surveillance under the 2008 law. Mr. Verrilli did not answer directly.

Last year, a unanimous three-judge panel of the United States Court of Appeals for the Second Circuit, in New York, ruled for the plaintiffs on that threshold question.

Judge Gerard E. Lynch, writing for the court, said the plaintiffs had shown that they had a reasonable fear that their communications would be monitored and had taken “costly measures to avoid being monitored.”

At Monday’s argument, Justice Anthony M. Kennedy said some lawyers would have no choice but to take such measures. “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.

Justice Kagan said the law also placed a different kind of burden on journalists. She asked Jameel Jaffer, a lawyer with the American Civil Liberties Union, which represents the plaintiffs, if he had evidence “to suggest that those journalists have simply not gotten information from third parties that they otherwise would have gotten?”

He said yes, and Justice Kagan continued. “If you assume that information is the lifeblood of journalism,” she said, then “their sources and their information have dried up as a result of this statute.”

Near the end of the argument in the case, Clapper v. Amnesty International, No. 11-1025, Justice Kagan described the limited issue before the court. The justices are not being called upon to decide whether the law violated the Fourth Amendment, she said, but rather whether the plaintiffs may try to make the case that it did.

“The question is only,” she said, “Can they make their argument to a court?”