This Monday, ACLU lawyers representing PEN American Center, Human Rights Watch, Amnesty International, and other human rights organizations, activists, and individual journalists will appear before the Supreme Court to argue that a U.S. Court of Appeals ruled correctly when it held that PEN and its co-plaintiffs have legal “standing” to press our lawsuit challenging the U.S. government’s massive and secret NSA surveillance program.
The ACLU filed the lawsuit on behalf of PEN and its co-plaintiffs in 2008, shortly after Congress passed the FISA Amendments Act. The FAA overhauled and significantly weakened the Foreign Intelligence Surveillance Act (FISA), which since 1978 had protected Americans from illegal governmental surveillance and effectively rubber stamped—and allowed the expansion of—the National Security Agency’s massive post-9/11 telephone and Internet surveillance program—a program that even the Bush administration’s Department of Justice would not certify as legal under the U.S. Constitution. PEN and our co-plaintiffs filed this suit because we believe that our international communications are being monitored under the program, and that such surveillance compromises our ability to carry out our international human rights work.
As we explained in this 2009 Huffington Post piece titled “Why We’re Challenging the FISA Amendments Act”:
Like our co-plaintiffs in the case, which include human rights, labor, legal, and media organizations, we rely on confidential international communications to carry out our work. The trust we depend on is hard-won: those with whom we work abroad have often been monitored, imprisoned, or persecuted in their countries, and some of them are living and working in countries where a history of cooperation between their governments and U.S. intelligence agencies has left a legacy of fear and distrust of the United States. The fact that the National Security Agency (NSA) now has nearly limitless authority to monitor our international calls and emails severely compromises our ability to communicate freely with our endangered colleagues, undercutting our ability to ascertain and serve their needs.
But surveillance powers like those the National Security Agency now possesses do more than damage our ability to do international human rights work. We know from the experiences of our colleagues in countries where governments had unchecked surveillance powers (including the United States as recently as the 1970s) that programs that allow governments to spy on their own citizens are often directed against writers and intellectuals, and that surveillance in general poses a serious threat to the intellectual and creative freedoms of all citizens.
Three years after the suit was filed, we are still fighting to establish that we have the right to bring this lawsuit. The Supreme Court will decide that question once and for all this term.
The legal question is one of “standing”: to bring a lawsuit, plaintiffs must be able to show that they have been harmed by the law they are challenging. But how can we prove that we are being harmed by a program whose every aspect is classified? In August 2009, a federal court judge dismissed our suit, asserting that since PEN and our co-plaintiffs could not prove our communications had been monitored under the new law, we did not have legal standing to bring the suit. But in March of last year, a three-judge panel of the U.S. Second Circuit Court of Appeals emphatically held that PEN and the other organizations are directly affected by the law, and ruled that our lawsuit can proceed. The Obama administration appealed, and on Monday Jameel Jaffer of the ACLU will argue before the nine Supreme Court justices that that decision should stand.
ABC news has just posted a good piece looking at the standing question from PEN’s perspective here.
Of course the question looming over this case—and the question that we will press if we are allowed to proceed to trial—is whether a secret government surveillance program that vacuums up the telephone and Internet communications of American citizens violates our First Amendment free speech right and our Fourth Amendment right to be free from unreasonable searches. And as you would expect in a case with such a key constitutional right at stake, the briefs make for fascinating reading. Links to the full set are available here.
I recommend three in particular:
o The Second Circuit Court of Appeals decision ruling that PEN and its co-plaintiffs have been harmed sufficiently to bring this suit;
o The response brief the ACLU submitted on our behalf to the Supreme Court for this Monday’s hearing (in which PEN and its co-plaintiffs are listed as Respondents because the Obama Administration is asking the court to overturn the Appeals Court ruling);
o And there is a particularly compelling amicus curiae brief that was filed by several of members and staff of the Church Committee, which investigated abusive surveillance by intelligence agencies in the 1970s. That committee designed the FISA Act to prevent such abuses in the future, creating a supervisory court would scrutinize proposed surveillance by the government and also monitor any surveillance that had been approved—two protections that were gutted by the FISA Amendments Act. Their brief contains a terrific legislative history of the FISA system, and also offers a sobering look at how U.S. intelligence agencies have engaged in unwarranted surveillance of American citizens in the past under the pretext of targeting foreign agents.
Much has changed since the 1970s in terms of the sheer capacity, thanks to digital technologies, to conduct massive, dragnet surveillance operations that penetrate into every aspect of our daily lives. For a provocative meditation on the dangers such mass surveillance may pose for creative freedom, and the interplay between surveillance and fiction, I recommend Cato Fellow Julian Sanchez’s opening remarks for the 2012 PEN World Voices Festival program “Life in the Panopticon: Thoughts on Freedom in an Era of Pervasive Surveillance,” here (until 6:30), or in text version here.
PEN will issue a postmortem on the Supreme Court hearing on Tuesday.