New York City, May 21, 2012—The U.S. Supreme Court today announced that it will consider whether a case brought by PEN and a number of other human rights, labor, and media organizations challenging the National Security Agency’s secret telephone and Internet surveillance program can proceed to trial.
The groups went to court in July 2008 to overturn provisions of the FISA Amendments Act that allow the dragnet surveillance of American’s international emails and phone calls, arguing that the expectation of monitoring harms their ability to communicate freely with international clients and colleagues. Both the Bush and Obama administrations have sought to have the suit dismissed on the ground that because the groups cannot show that their communications have been monitored under the secret program, they cannot demonstrate they have been harmed by the program and so lack “standing” to sue. The Second Circuit Court of Appeals rejected that logic, ruling that PEN and its co-plaintiffs have a reasonable basis to fear that the government may be monitoring their conversations under the terms of the law, and that the groups should be allowed their day in court.
The Obama administration appealed that decision, and today’s announcement means that the Supreme Court will review the standing question later this year. The ACLU, which is representing PEN and its co-plaintiffs, will argue the case.
“With the FAA up for reauthorization at the end of the year, it is disappointing that we must once again argue the standing question instead of examining the legality of the program itself,” said Peter Godwin, president of PEN American Center. “For us, the important question is whether the system of checks and balances works, so that laws allowing programs that are utterly secret must at least be subject to independent judicial review. We look to the Supreme Court to uphold our right to clarify how the NSA’s surveillance program affects our organization’s sensitive international communications.”
“At a time when PEN is contending with the dangers secret surveillance programs pose for writers and freedom of expression in countries from Ethiopia and South Africa to China, it is absurd that we should be worrying about whether our communications with vulnerable colleagues in those countries are being monitored by our own government,” added Larry Siems, director of Freedom to Write and International Programs at PEN American Center. “Allowing our case to proceed to trial would send a strong message not just in the U.S. but around the world about this country’s commitment to ensuring that no government agency or program is above the law.”
PEN American Center is the largest of the 144 centers of PEN International, the world’s oldest human rights organization and the oldest international literary organization. The Freedom to Write Program of PEN American Center works to protect the freedom of the written word wherever it is imperiled. It defends writers and journalists from all over the world who are imprisoned, threatened, persecuted, or attacked in the course of carrying out their profession. For more information on PEN’s work, please visit www.pen.org.