In the deluge of Hurricane Sandy coverage you might have missed that the Supreme Court was in session to hear Amnesty International's challenge to the FISA Amendments Act of 2008, Clapper v. Amnesty International USA. This argument was just to establish "standing" and not on the merits of the law itself.
Amnesty (represented by the ACLU) argued that they have standing to challenge the law’s constitutionality because human rights advocates, journalists and attorneys, rely on confidentiality in international communications with victims of human rights abuses and government officials. The Obama administration claims that groups like Amnesty don’t have standing in the case because they can’t prove that they are subject to surveillance. But how can they prove such a thing when the information about who the government monitors is secret and the process of surveillance is designed to be undetectable? From AI's statement:
The Obama Administration, under the guise of a war on terror, has tried to ban judicial review of the constitutionality of the law that in 2008 expanded the National Security Agency’s warrantless wiretapping program. The FISA Amendments Act of 2008 casts a wide net that is ensnaring individuals who are not suspected of wrongdoing and infringes on their rights. The government’s Catch-22 argument that no one has standing to challenge this program because no one can prove that they have been targeted must not be allowed to immunize this far-reaching wiretapping regime from legal review.So how'd it go? Blow by blow argument summary is available at ScotusBlog. Adam Serwer's verdict at Mother Jones:
Justice Anthony Kennedy, who in the past has been a key swing vote on war on terror cases, said attorneys for suspected terrorists would be guilty of "malpractice" if they talked on the phone with their client with this statute in place. It's often hard to know where the justices stand based on oral arguments—but they seemed at least somewhat sympathetic to the ACLU's argument that the law made life more difficult for the plaintiffs.So far so good. Here's hoping we make it over the "standing" hurdle so the full statute can be put to the test.