After leaving questions of civil liberties and the so-called “War on Terror” aside last term, the Supreme Court will wade back into these issues next Monday. The case, argued by the American Civil Liberties Union on behalf of a number of media, labor, legal and human rights groups, is known as Clapper v. Amnesty International USA.
The questions being posed to the Justices revolve around the George W. Bush Administration’s program of warrantless wiretapping, which began in the years after 9/11 and were codified into law in the FISA Amendments Act of 2008. This law enables the government to conduct a yearlong programmatic surveillance project without a warrant as long as the primary target of the surveillance is outside of the United States and is not a U.S. citizen or lawful permanent resident (it is called programmatic because it need not pinpoint a specific suspect, but can be designed to gather large amounts of intelligence on a certain issue). The ACLU and the other plaintiffs argue that this program actually collects large amounts of information about U.S. citizens and people within the U.S. as secondary targets of the surveillance, and fear that evidence could be used against them in courts.
The plaintiffs consist of a broad coalition who assert that their professions put them in frequent contact with people abroad, and who fear that they could be victims of warrantless surveillance. They argue that this violates their Fourth Amendment rights against unreasonable search and seizure and places undue restrictions on their First Amendment rights to free speech. If they win their case, significant restrictions would be placed on the government’s ability to conduct broad-based surveillance, requiring them to target their focus to specific individuals.
However, the Supreme Court is not being asked to rule on the constitutionality of this case yet. The hearing on Monday concerns only whether the plaintiffs have the proper standing to challenge the law. Those represented by the ACLU have not been able to produce proof that they have been victims of this program (the details of which are, of course, secret). On the other hand, they are claiming that they have a credible fear of being targeted due to the nature of their work. A lower court threw out the case stating that this claim did not give the plaintiffs the right to sue, however the Second Circuit Court of Appeals overturned that ruling. After next Monday the Justices will have to decide whether that threat of being wiretapped justifies the lawsuit, and in doing so – some experts suspect – they may also have to make claims about the constitutionality of the laws in question.
Judaism has long demanded respect for the rights of privacy and speech. The Talmud developed a specific notion of “the harm caused by seeing” something you do not have permission to see. Jewish tradition forbids eavesdropping and it allows spying to gather information on a crime only in the most extreme circumstances. Recognizing the importance of these rights in the light of 9/11 and the War on Terror, in 2003 the Reform Movement adopted a resolution calling for the need to balance national security concerns with the protection of civil liberties.
The continued struggle for this balance lies at the core of Clapper v. Amnesty. Check back at RACblog as we follow the Supreme Court in its attempt to find that balance.