High Court to Decide if Challenge to Government Surveillance Program Will Be Heard

By:  Jack Kenny
High Court to Decide if Challenge to Government Surveillance Program Will Be Heard

The Supreme Court will decide whether to allow a constitutional challenge to the government's warrantless surveillance to go forward.  

Hurricane Sandy did not prevent the U.S. Supreme Court from hearing oral arguments Monday, October 29, but it remains unclear whether the high court will allow a lawsuit challenging the constitutionality of the government's warrantless surveillance of Americans' international communications to go forward.

In Clapper v. Amnesty International, a group of lawyers and human rights activists filed suit against the government over the monitoring of international phone calls and e-mails authorized under the 2008 amendments to the Foreign Intelligence Surveillance Act. In amending the 1978 law, Congress increased from 48 hours to seven days the amount of time the government may conduct surveillance of a suspect outside the United States before notifying the FISA court, while another provision, due to expire on December 31 of this year, allows the director of national intelligence and the attorney general to jointly authorize electronic surveillance without a warrant for one year if the target is a foreigner located outside of the United States. The plaintiffs argued that the secret, warrantless procedures are prohibited by the Fourth Amendment ban on unreasonable searches and violate attorney-client confidentiality whenever a phone call or an e-mail between a lawyer and a client in another country is intercepted and monitored.

The suit, naming Director of National Intelligence James R. Clapper as the defendant, was given the green light last year by the U.S. 2nd Circuit Court of Appeals in New York after the court dismissed the government's argument that the plaintiffs lacked legal standing to challenge the law, since none could show evidence of either past or imminent harm from it. The government then appealed to the Supreme Court, where some of the justices seemed skeptical of the legal standing argument.

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Photo of United States Supreme Court building in Washington, D.C.: AP Images

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