Surveillance ‘law’ challenge rejected

WASHINGTON, Feb 27, (Agencies): US-based journalists, lawyers and human rights groups cannot challenge a federal law that allows surveillance of some international communications, the Supreme Court ruled on Tuesday in a case touching on government efforts to fight terrorism.

Split 5-4 on ideological lines, with conservatives backing the government and the liberal wing in the minority, the country’s highest court said none of the three categories, including human rights groups Amnesty International and Human Rights Watch, have legal standing to sue because they could not show they had suffered any injury.

The law in question was the 2008 amendment to the Foreign Intelligence Surveillance Act (FISA) that authorized mass surveillance by the US government, without identifying specific targets, for the purpose of monitoring foreigners outside the country and gathering intelligence.

President George W. Bush authorized warrantless wiretaps after the Sept 11, 2001, attacks to find people with ties to the al-Qaeda network and other groups. He ended that program in 2007, but Congress the next year reinstated parts of it.

Argued

The Obama administration argued that the challengers did not have standing, a position the court’s majority endorsed. The Justice Department declined to comment on the ruling.

Jameel Jaffer, the American Civil Liberties Union lawyer who argued the case for the challengers, called the ruling “disturbing.”

“This ruling insulates the statute from meaningful judicial review and leaves Americans’ privacy rights to the mercy of the political branches,” he said in a statement.

Since the Sept 11 attacks, the Supreme Court has been reluctant to intervene in White House affairs governing national security and intelligence-gathering procedures, and the government has said it needs to be flexible in surveillance.

But the challengers said the amendment unreasonably added to their burdens by forcing them to stop communicating by phone and email with sources and clients, including in such places as Afghanistan or Guantanamo Bay, Cuba, and instead meet in person.

They also said it could subject millions of people to monitoring without a warrant, violating the protection against illegal searches and seizures under the Fourth Amendment of the US Constitution.

In Tuesday’s ruling, Justice Samuel Alito wrote on behalf of the majority that the challengers’ argument was based on a “highly speculative fear” that the government would target their communications and not choose other means to carry out surveillance if it was required.

Targeted

The law states that US-based people should not be targeted and the various individuals and groups that filed suit had not shown any evidence that they had been, Alito said.

Likewise, the law’s opponents had no evidence that the non-US people they are communicating with have been targeted either, he added.

“We decline to abandon our usual reluctance to endorse standing theories that rest on speculation about the decisions of independent actors,” Alito wrote.

Justice Stephen Breyer wrote a dissenting opinion in which he took issue with Alito’s conclusion that the likelihood of harm was purely speculative.

“Indeed, it is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen,” Breyer wrote.

In the past, the court has embraced that wider view of what constitutes standing, he added.

Breyer said there is a “very high likelihood” that the government would cite the law when intercepting communications of the type at issue in the case.

The US Supreme Court on Tuesday struggled with what one of the justices called its most important criminal procedure case in decades, whether to let police take DNA without a warrant from those arrested in hopes of using it to solve old cases.

Justices seemed conflicted over whether police have a right to take genetic information from people who have only been arrested without getting a judge’s approval first, or if the government’s interest in solving cold cases trumped the immediate privacy rights of those under police suspicion of other crimes.

One justice seemed to make clear what he thought. “I think this is perhaps the most important criminal procedure case that this court has heard in decades,” said Justice Samuel Alito, a former prosecutor.

“This is what is at stake: Lots of murders, lots of rapes that can be solved using this new technology that involves a very minimal intrusion on personal privacy,” Alito said later. “Why isn’t this the fingerprinting of the 21st century? What is the difference? If it was permissible, and it’s been assumed to be so for decades, that it is permissible to fingerprint anybody who’s booked, why is it not permissible to take a DNA sample from anybody who is arrested?”

Questioned

But Chief Justice John Roberts and Justice Elena Kagan questioned how far the government can go if they decide that the police have an interest in people’s DNA to help solve cases, with Roberts noting that it wouldn’t take much for police to add DNA swabs to traffic stops. “Police officers who give Breathalyzer tests, they can also take a Q-tip or whatever and get a DNA sample, right?” Roberts said.

“It could be any arrestee, no matter how minor the offense,” Kagan said. “It could be just any old person in the street. Why don’t we do this for everybody who comes in for a driver’s license because it’s very effective?”

Getting DNA swabs from criminals is common. All 50 states and the federal government take cheek swabs from convicted criminals to check against federal and state databanks, with the court’s blessing. But now 28 states and the federal government now also take samples from people who have been arrested for various crimes, long before their guilt or innocence has been proven.

According to court documents, the FBI’s Combined DNA Index System or CODIS — a coordinated system of federal, state and local databases of DNA profiles — contains more than 10 million criminal profiles and 1.1 million profiles of those arrested.

More than 200 businesses will urge the US Supreme Court on Wednesday to strike down a federal law that restricts the definition of marriage to heterosexual unions.

Lawyers representing the businesses said they would file a brief in the case.

Companies including Microsoft Corp, Google Inc , Starbucks Corp and Pfizer Inc are among those that joined the brief. Others included Aetna Inc , Amazon.com, Inc and Citigroup Inc.

Thomson Reuters Corp is another signatory. The Reuters news agency is part of Thomson Reuters.

The companies want the Supreme Court to strike down a key provision of the federal Defense of Marriage Act (DOMA) that defines marriage as a union between a man and a woman.

Separately, lawyers representing another group of employers, including some of the same companies, had said already that they planned to file a brief on Thursday in a related case that questions a California law that bans gay marriage. The two cases are to be argued before the Supreme Court on March 26 and 27.

In the brief filed on Wednesday, attorney Sabin Willett wrote that DOMA“requires that employers treat one employee differently from another, when each is married, and each marriage is equally lawful.” (RTRS)

The most potent weapon in fighting discrimination at the US ballot box comes before the Supreme Court on Wednesday in a case that weighs the nation’s enormous progress in civil rights against the need to continue to protect minority voters.

The justices are hearing arguments in a challenge to the part of the Voting Rights Act that forces places with a history of discrimination, mainly in the Deep South, to get approval before they make any change in the way elections are held.

The advance approval was adopted in the Voting Rights Act in 1965 to give federal officials a way to get ahead of persistent efforts to keep blacks from voting. The provision was a huge success, and Congress periodically has renewed it over the years, most recently in 2006, when a Republican-led Congress overwhelmingly approved and President George W. Bush signed a 25-year extension.

Coverage has been triggered by past discrimination not only against blacks, but also against American Indians, Asian-Americans, Alaskan Natives and Hispanics. But the lawsuit from Shelby County, Alabama, says the “dire local conditions” that once justified strict federal oversight of elections no longer exist.

The Obama administration and civil rights groups acknowledge the progress, but they also argue that Congress was justified in maintaining the advance approval provision when the law was last renewed in 2006.