Newspaper article International Herald Tribune

Top Court Upholds U.S. Surveillance Law ; Justices Reject Challenge to Broadening of Power to Eavesdrop on Citizens

Newspaper article International Herald Tribune

Top Court Upholds U.S. Surveillance Law ; Justices Reject Challenge to Broadening of Power to Eavesdrop on Citizens

Article excerpt

A 5-4 decision saying the plaintiffs lacked standing to sue over monitoring of international phone calls and e-mails illustrated how hard it is to mount court challenges to a wide array of anti- terrorism measures.

The U.S. Supreme Court has turned back a challenge to a U.S. law that broadened the government's power to eavesdrop on international phone calls and e-mails.

The decision Tuesday, by a 5-to-4 vote that divided along ideological lines, probably means the Supreme Court will never rule on the constitutionality of that 2008 law.

More broadly, the ruling illustrated how hard it is to mount court challenges to a wide array of anti-terrorism measures, including renditions of terrorism suspects to foreign countries and targeted killings using drones, in light of the combination of government secrecy and judicial doctrines limiting access to the courts.

"Absent a radical sea change from the courts, or more likely intervention from the Congress, the coffin is slamming shut on the ability of private citizens and civil liberties groups to challenge government counterterrorism policies, with the possible exception of Guantanamo," said Stephen I. Vladeck, a law professor at American University in Washington.

Writing for the majority, Justice Samuel A. Alito Jr. said that the journalists, lawyers and human rights advocates who challenged the constitutionality of the law could not show they had been harmed by it and so lacked standing to sue. The plaintiffs' fear that they would be subject to surveillance in the future was too speculative to establish standing, he wrote.

Justice Alito also rejected arguments based on the steps the plaintiffs had taken to escape surveillance, including traveling to meet sources and clients in person rather than talking to them over the phone or sending e-mails. "They cannot manufacture standing by incurring costs in anticipation of nonimminent harms," he wrote of the plaintiffs.

It is of no moment, Justice Alito wrote, that only the government knows for sure whether the plaintiffs' communications have been intercepted. It is the plaintiffs' burden, he wrote, to prove they have standing "by pointing to specific facts, not the government's burden to disprove standing by revealing details of its surveillance priorities."

In dissent, Justice Stephen G. Breyer wrote that the harm claimed by the plaintiffs was not speculative. "Indeed," he wrote, "it is as likely to take place as are most future events that common-sense inference and ordinary knowledge of human nature tell us will happen."

Under the system of warrantless surveillance that was put in place shortly after the terrorist attacks of Sept. 11, 2001, the National Security Agency was authorized to monitor Americans' international phone calls and e-mails without a warrant. Aspects of the program remain secret.

After The New York Times disclosed the program in 2005 and questions were raised about its constitutionality, Congress in 2008 amended the Foreign Intelligence Surveillance Act, granting broad power to the executive branch to conduct surveillance aimed at persons overseas without an individual warrant. …

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