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US Supreme Court justices question surveillance secrecy

Justices ask a government lawyer how groups can challenge a spying program if they don't know if they're targets

By , IDG News Service
October 29, 2012 03:25 PM ET

IDG News Service - U.S. Supreme Court justices on Monday questioned the legitimacy of a law allowing a secretive government surveillance program and the assertion by a government lawyer that some groups couldn't challenge the law in court because they don't know if they've been spied on.

U.S. Solicitor General Donald Verrilli told the court that groups including Amnesty International, Human Rights Watch and lawyers for terrorism suspects had no standing to challenge the FISA Amendments Act, a 2008 law that gave the U.S. National Security Agency broad new surveillance authority, because they had no proof they were targets of the surveillance.

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The groups have relied on a "cascade of speculation" to make a case that they have been spied on and therefore have the right to claim their rights against unreasonable searches have been violated, he told the court. The groups are asking the court to invalidate the law "without a single fact to validate the assertions" of spying, he said.

Most of the nine justices questioned how anyone would then have standing to challenge the constitutionality of the law. Targets of the NSA surveillance, which can include U.S. residents telephoning or exchanging email with suspected terrorists, only learn of the surveillance when they're being charged with a crime, said Justice Sonia Sotomayor.

"Is there anybody who has standing?" she said. "No one could ever stop [the surveillance] until they were charged with a crime."

In March 2011, the U.S. Court of Appeals for the Second Circuit ruled that Amnesty International and the other groups had the right to challenge the constitutionality of the law. The U.S. government has challenged that decision.

Verrilli argued that the U.S. Congress, in passing the FISA Amendments Act, put a number of safeguards in place. A Foreign Intelligence Surveillance Court judge must normally approve the surveillance, and Congress has substantial oversight of the program, he said. Surveillance cases covered by the FISA Amendments Act generally contain classified information, and there may be no good way to challenge that surveillance in court, he said.

The Supreme Court, in earlier cases involving challenged government actions, has required that the injuries alleged had to have occurred or be "certainly impending." The coalition of groups challenging the FISA Amendments Act have only speculated that they have been targets of the surveillance, he said.

But some of the groups challenging the law have a reasonable expectation that they are surveillance targets, said Justice Stephen Breyer. One of the lawyers challenging the law represents a suspect who has had 10,000 phone calls tapped and 20,000 email messages intercepted under other programs, he noted.

If the NSA is doing its job, it's "almost nearly certain" that the lawyer has been the target of surveillance under the FISA Amendments Act, he said.

But the groups challenging the law may have already been spied upon before the 2008 law, Verrilli said. If a person was spied upon under another program, he doesn't have the standing to challenge the FISA Amendments Act, Verrilli said.

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