But the justices, in the term beginning in October, will not rule on whether the 2008 law that authorized the program violates the Americans’ Fourth Amendment right to protection from unreasonable searches.
Instead, the question is whether such a fear, and the actions the plaintiffs have taken because of the law, give them a right — which courts call “standing” — to proceed in challenging the law.
A federal judge in New York ruled that they did not. But a panel of the U.S. Court of Appeals for the Second Circuit disagreed, and a request by the government that the entire court overturn that decision failed on a tie vote.
U.S. Solicitor General Donald B. Verrilli Jr. asked the high court to step in. He said the concerns of the plaintiffs, who are represented by the American Civil Liberties Union, reflect only “bare conjecture that the government will choose to expend its limited resources to target respondents’ foreign contacts.”
The program began during the nation’s response to the attacks of Sept. 11, 2001, and eventually led to a broadening of the Foreign Intelligence Surveillance Act, which said the government generally must obtain a search warrant from a judge to listen in to conversations in the United States involving people suspected of being spies or terrorists.
The New York Times revealed in 2005 that President George W. Bush had approved an extensive program of “warrantless wiretapping” to intercept international phone conversations and e-mails that began or terminated in the United States, in order to monitor potential plots.
In 2008, Congress responded to criticism that the program was unconstitutional by approving amendments to FISA. They gave the attorney general and the director of national intelligence broad powers to monitor communications in the United States, as long as one party in the communication was abroad and the targets were foreigners believed to be outside the United States.
The ACLU filed its lawsuit the day the amendments became law, saying the secret orders permitted by the law would undoubtedly ensnare Americans. Its clients regularly spoke on the phone or exchanged e-mails with those who might be included in such surveillance orders.
The law “allows the government to collect these communications en masse without specifying the individuals or facilities to be monitored; without observing meaningful limitations on the retention, analysis, and dissemination of acquired information; without individualized warrants based on criminal or foreign intelligence probable cause; and without prior judicial or even administrative determinations that the targets of surveillance are foreign agents or connected in any way, however remotely, to terrorism,” the ACLU told the court.
The group said the lower court was correct in agreeing that its clients had standing to challenge the law because they had a reasonable fear that their communications would be targeted and disseminated. And it said these clients had suffered “concrete” damages because of the law, such as having to travel overseas to meet their contacts in person rather than communicating on the phone or via e-mail.
If the plaintiffs have no standing to question the program, the ACLU said, there could be no judicial oversight of the law.
The case is Clapper v. Amnesty International USA.