World and Nation

Court hears challenge to 2008 law letting US eavesdrop

WASHINGTON — A challenge to a federal law that authorized intercepting international communications involving Americans appeared to face an uphill climb at the Supreme Court on Monday, but not one quite as steep as many had anticipated.

The question in the case was whether journalists, lawyers and human rights advocates could show they had been harmed and so had standing to sue, and several justices seemed open to the idea.

If the case is dismissed for lack of standing, there is a fair prospect that the Supreme Court will never rule on the constitutionality of the law, a 2008 measure that broadened the government’s power to eavesdrop on international communications. The law, an amendment to the Foreign Intelligence Surveillance Act, was passed after the 2005 disclosure of the Bush administration’s secret program to wiretap international communications of people inside the United States without obtaining court warrants. The electronic spying, intended to help pursue terrorists, began after the Sept. 11, 2001, attacks.

The 2008 law was challenged by Amnesty International, the American Civil Liberties Union and other groups and individuals, including journalists and lawyers who represent prisoners held at Guantanamo Bay, Cuba. The plaintiffs said the law violated their rights under the Fourth Amendment by allowing the government to intercept their international telephone calls and emails. Some of the plaintiffs said they now meet clients or sources only in person.

The possibility that the courts may never rule on the constitutionality of the law seemed to rankle some of the justices.

“Is there anybody who has standing?” Justice Sonia Sotomayor asked.

Solicitor General Donald B. Verrilli Jr. said there might be if the government sought to introduce evidence in a criminal proceeding that it had gathered under the law. Justice Ruth Bader Ginsburg said that was unlikely given the nature of the surveillance.

“I see the theoretical possibility,” she said, “but I don’t see a real person who would be subject to a federal charge who could raise an objection.”

Justice Antonin Scalia responded that some laws are beyond judicial review.

“We’ve had cases in the past where it is clear that nobody would have standing to challenge what is brought before this court,” he said. “That just proves that under our system of separated powers, it is none of our business.”

Justice Elena Kagan pressed Verrilli on whether he or any other competent and ethical lawyer should communicate with clients and sources in the face of the possibility of government surveillance under the 2008 law.