Snowden Leaks Could Reboot NSA Challenge in High Court
(CN) - Edward Snowden's leaks should prompt reconsideration of whether Amnesty International has standing to challenge mass surveillance, a rights group told the high court Friday.
In 2008, Amnesty International and the American Civil Liberties Union filed a federal complaint on behalf of labor, legal, media and human-rights organizations opposing warrantless surveillance as unconstitutional.
Saying the groups could not prove that the government actually spied on them, and that their fear of injury under Foreign Intelligence Surveillance Act was merely speculative, a Manhattan federal judge initiall sided with the government on summary judgment.
When the 2nd Circuit reversed in March 2011, it said the critics did indeed have standing to fight as the entities would be more than tangentially related to the "persons of interest" who could be the target of any possible surveillance. That 63-page decision said government surveillance poses a threat that is great enough to have caused immediate harm. The groups have gone to great lengths to avoid the chance that wiretaps could compromise their communications with clients and sources, according to the ruling.
This claim of "future injury" was too " speculative ," however, for a five-member majority of the Supreme Court in February 2013.
Months later in June, Snowden eliminated doubt that the policy-challenging plaintiffs - along with millions of other U.S. citizens - were being spied on by disclosing a top-secret court order that forces Verizon to "turn over, every day, metadata about the calls made by each of its subscribers over the three-month period ending on July 19, 2013."
On Friday, lawyers for the Center for Constitutional Rights (CCR) filed a petition for a writ of certiorari urging the Supreme Court to revisit its decision of standing in light of the new information.
The 108-page petition makes only one explicit reference to the National Security Agency whistle-blower in a footnote.
"Notwithstanding the high bar the Amnesty decision set for chilling-effect content surveillance plaintiffs, the very ubiquity of NSA metadata surveillance (as disclosed by Edward Snowden's revelations) has allowed some litigation challenging it to proceed in the district courts. See Klayman v. Obama," the footnote states (emphasis and parentheses in original).
That citation refers to a decision in Washington last month by U.S. District Judge Richard Leon, who slammed NSA metadata collection as unconstitutional and "Orwellian." Leon nevertheless stayed his decision pending appellate court review.
Weeks later, U.S. District Judge William Pauley in Manhattan reached the opposite conclusion and denied the American Civil Liberties Union an injunction on mass data collection.
Perhaps alluding to repeated setbacks in such litigation, the new Supreme Court petition remarks upon the "seeming futility of attempts to debate the legality of broad surveillance in the courts has led to that debate being removed to the only remaining open forum available - the press - through the intervention of whistleblowers."
"The current vitality of that debate demonstrates the exceptional importance of the questions before this court," the petition states.
It is signed by the CCR's senior attorney Shane Kadidal.
He added in a statement: ""Without reversal or clarification of Amnesty v. Clapper from the Supreme Court, lower courts will continue to dismiss claims by lawyers without proof to a certainty that they are being surveilled."