Unlike the major parties’ presidential candidates, the Supreme Court has committed to address civil liberties this year. The remaining 2012 Supreme Court Term includes cases on issues from warrantless surveillance and warrantless searches involving drug-sniffing dogs or recent departures from a house about to be searched, to the ability to try severe human rights abuses in federal court.
Clapper v. Amnesty International holds tremendous importance. The Bill of Rights Defense Committee (BORDC), along with privacy groups such as the Electronic Privacy Information Center (EPIC), recently submitted a friend of the court brief in the case, which will decide whether affected citizens have the right to challenge warrantless spying.
In 1978, responding to widespread domestic spying by the US Government without warrants, Congress passed the Foreign Intelligence Surveillance Act (FISA). FISA created more permissive rules for foreign intelligence, versus more robust limits on domestic surveillance, and also created a secret FISA court to oversee intelligence investigations.
In 2005, a pair of journalists revealed that, in violation of FISA, the Bush had created a program of mass warrantless surveillance so extreme that it almost triggered a mass resignation by officials including FBI Director Robert Mueller and his deputies.
After years of lobbying by telecom companies, Congress passed the FISA Amendments Act of 2008 (FAA) to allow precisely what the original FISA prohibited, such as "the mass acquisition, without individualized judicial oversight or supervision, of Americans’ international communications."
In response to the FAA, a coalition of humanitarian, media and labor organizations that communicate with contacts and clients abroad immediately challenged the FAA in federal court. The government disputed the individuals’ right to even bring the lawsuit, and while a District Court agreed, the Second Circuit Court of Appeals ruled that the plaintiffs do have the right to challenge the FAA in court. The Obama administration appealed this decision to the Supreme Court.
On October 29th, the Supreme Court will hear oral argument in Clapper v. Amnesty, before deciding whether the plaintiffs should be allowed to challenge warrantless spying that directly impacts them, or whether the National Security Agency may instead continue mass warrantless spying on law-abiding Americans, immune from judicial review.
The House of Representatives recently voted to reauthorize the FAA for another five years, and the Senate is expected to vote later this year. Both the Supreme Court's decision inClapper and the Senate vote will represent crucial points in the ongoing struggle over government surveillance