Supreme Court to Hear Amnesty FISA Challenge

May 22, 2012

us supreme courtThe United States Supreme Court decided yesterday to hear an important case related to warrantless government surveillance and the Foreign Intelligence Surveillance Amendments Act of 2008:  Amnesty et al v. Clapper.

Amnesty, other NGOs, journalists and attorneys are being represented by the American Civil Liberties Union. “Clapper” refers to James R. Clapper, Jr., the Director of National Intelligence.

The issue before the Court is whether we can challenge the constitutionality of the FISA Amendments Act, which basically allows “dragnet” surveillance of emails and phone calls without warrant and without sufficient independent judicial oversight.

Our argument is that we have standing to challenge the law’s constitutionality because as human rights advocates, journalists and attorneys, we rely on confidentiality in our international communications with victims of human rights abuses, whistle-blowers and government officials–and our work is severely impacted by the law. 

The Obama administration claims that we don’t have standing in the case because we can’t prove that we are impacted—i.e., subject to surveillance. But how can we prove such a thing when the information about who the government monitors is secret and the process of surveillance is designed to be undetectable?

And that gets at the heart of the unconstitutionality of the FISA Amendments Act. The law:

  • Violates the First (freedom of speech, freedom of the press) and Fourth (against unreasonable searches and seizures) Amendments to the U.S. Constitution.
  • Invests the National Security Agency with sweeping power to monitor Americans’ international phone calls and emails.
  • Doesn’t include a probable cause or warrant requirement, so its effect is to allow the NSA to conduct dragnet surveillance, not just surveillance directed at suspected terrorists and criminals.
  • Doesn’t provide for meaningful judicial review or congressional or public oversight.

But the Supreme Court won’t be considering any of these claims when it hears oral arguments in our case this fall. The Court will only be pondering whether we have the right to bring a case at all. If that’s too long of a wait for you, then join the ACLU’s campaign to fix the FISA Amendments Act and end warrantless wiretapping.