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High court hears challenge to surveillance law

FISA expansion harms citizens, plaintiffs charge

Solicitor General Donald Verrilli said opponents should not be allowed to sue.

Solicitor General Donald Verrilli said opponents should not be allowed to sue.

WASHINGTON — The Supreme Court seemed skeptical Monday of a government request to invalidate a lawsuit challenging the expansion of a surveillance law used to monitor conversations of suspected foreign spies and alleged terrorists.

The Foreign Intelligence Surveillance Act, or FISA, passed in 1978, allows the government to monitor conversations of such suspects abroad for intelligence purposes.

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The 2008 FISA amendments further allow the government to obtain from a secret court broad, yearlong intercept orders, raising the prospect that phone calls and e-mails between those foreign targets and innocent Americans in this country will be swept in.

Although the law is aimed at foreigners, Jameel Jaffer, who represented a group of lawyers, journalists, and organizations, argued in front of the court that Americans who think they are getting caught up in the government monitoring should be allowed to sue to reverse the law’s 2008 expansion.

Jaffer said his colleagues are already taking costly measures like flying overseas to talk to people instead of using telephones and e-mails to keep their conversations private.

The justices are expected to make a decision on the injunction request next year.

Chief Justice John Roberts noted Monday that the court in the past said injuries have to have occurred or be ‘‘certainly impending’’ for people to have standing to sue.

Government’s Stance

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‘‘It’s not enough, of course, to know that the government is using the statute,’’ Roberts said. ‘‘The whole question is whether or not your clients have been injured, not whether the statute’s being used.’’

‘‘Our plaintiffs have reasons to believe that their own communications will be monitored under the statute,’’ Jaffer said. ‘‘One relates to the kind of information that they routinely exchange over the phone and by e-mail: foreign intelligence information. But it’s also that plaintiffs communicate with the kinds of people the government is likely to monitor under the statute.’’

A federal judge threw out the lawsuit, saying the plaintiffs lacked standing to sue, but the US Court of Appeals for the Second Circuit reinstated the lawsuit. The court is not considering the constitutionality of the expansion, only whether lawyers can even file a lawsuit to challenge it in federal court.

Solicitor General Donald Verrilli said opponents should not be allowed to sue because they have no proof that their conversations will be listened to by the US government, and no one is making them change the way they do business. ‘‘I think you do not have a concrete application of this authority against anyone, and therefore you cannot meet the basic Article III requirement of standing,’’ Verrilli said.

Verrilli insisted that the opponents’ arguments were a ‘‘cascade of speculation’’ about whether the government was going to use its surveillance powers.

‘‘You are saying that the government has obtained this extraordinarily wide-reaching power, and we have extraordinary risks that face this country and the government’s not going to use it? It’s hard for me to think that the government isn’t using all of the powers at its command under the law in order to protect this country,’’ said Justice Anthony Kennedy.

‘‘I’m not saying that at all, Justice Kennedy,’’ Verrilli said. ‘‘But it remains the case that in order for there to be an Article III case or controversy, a concrete application of that authority has to be demonstrated, and it hasn’t been under the theory of the plaintiffs’ case.’’

The court’s four liberal justices — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan — peppered Verrilli with questions over whether anyone would able to sue over the FISA expansion, considering that the people targeted for the wiretapping are foreigners and the Americans caught up in the wiretapping will never know that their overseas conversations are being listened to.

In another matter Monday, the high court took no action on cases asking it to end the Voting Rights Act’s advance approval requirement, under which certain states and localities must obtain federal approval for changes in election laws. The provision has been held up as a crown jewel of the civil rights era, but opponents maintain it is no longer needed.

The requirement was adopted in the Voting Rights Act in 1965 to give federal officials a potent tool to defeat efforts to keep blacks from voting. The provision was a success, and Congress has renewed it over the years.

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