The Supreme Court on Monday will hear arguments on whether it should halt a legal challenge to a once-secret warrantless surveillance program targeting Americans’ communications, a program that Congress eventually legalized in 2008.
The hearing will mark the first time the Supreme Court has reviewed any case touching on the eavesdropping program that was secretly employed by the George W. Bush administration in the wake of the September 11, 2001 terror attacks, and largely codified into law years later.
Before the justices is the FISA Amendments Act (.pdf), the subject of a lawsuit brought by the American Civil Liberties Union and others. The act authorizes the government to electronically eavesdrop on Americans’ phone calls and e-mails without a probable-cause warrant so long as one of the parties to the communication is believed to be outside the United States. Communications may be intercepted “to acquire foreign intelligence information.”
The government has also, according to former top Justice Department lawyer David Kris, taken the ”position that surveillance of a U.S. person’s home and mobile telephones was ‘directed at’ al Qaeda, not at the U.S. person himself. [T]his logic seemed to allow surveillance of Americans’ telephones and e-mail accounts, inside the United States, without adherence to traditional FISA, as long as the government could persuade itself that the surveillance was indeed ‘directed’ at al Qaeda or another foreign power that was reasonably believed to be abroad.”
That bill was signed into law in July 2008, and the ACLU filed suit immediately claiming it was unconstitutional. A lower court judge tossed the suit.
But a surprise appellate court decision last year reinstated the challenge. The Obama administration asked the Supreme Court to overturn the decision and, in May, the justices agreed to do so. [continue]