The following column appears in today's edition of Legal Times (available to subscribers here). The blog learned earlier today that the petition, originally distributed for Friday’s conference, will in fact not be considered until a later conference. To see the full list of "petitions to watch" for Friday's conference, click here.

Since its disclosure by The New York Times in late 2005, the National Security Agency’s warrantless surveillance program has generated a host of constitutional questions, chief among them whether the Foreign Intelligence Surveillance Act – whose procedures Congress established as the exclusive means for federal monitoring of electronic communications inside the United States – conflicts with the president’s wartime duty to defend the nation from potential attack.

But in the first petition challenging the program to reach the Supreme Court, the justices will confront a more preliminary and technical question: whether individuals who feared being subject to NSA surveillance – and thus refrained from using certain forms of communication – have standing to challenge the program in the first place. The justices will consider whether to review that question at their private conference on Jan. 18, and they could issue a decision as soon as that afternoon. (The petition is No. 07-468, American Civil Liberties Union v. National Security Agency.)

Scarcely a month after the disclosure of the NSA program in the media, the ACLU brought suit in the U.S. District Court for the Eastern District of Michigan along with a host of scholars, journalists, attorneys, and other organizations whose work required them to communicate with individuals overseas thought to be likely targets of NSA surveillance. Moving for summary judgment, the plaintiffs submitted declarations from numerous criminal lawyers for accused terrorists, who, due to the possibility of government surveillance, asserted that they felt compelled to cease communicating by phone and e-mail with their clients and certain witnesses – or that such individuals were no longer willing to communicate with them.

Invoking the state secrets doctrine, as it has with all other challenges to the NSA program, the federal government argued that disclosing whether the plaintiffs themselves had been subject to surveillance could harm national security. Though finding the privilege to have been properly invoked, U.S. District Judge Anna Diggs Taylor nonetheless found – on the basis of information government officials had publicly disclosed – that the program violated not only FISA, but separation-of-powers principles and the First and Fourth amendments.

Meanwhile, the administration announced a suspension of the program in January 2007 after receiving approval to conduct identical surveillance from a judge on the Foreign Intelligence Surveillance Court. Then, over the summer, a divided panel of the U.S. Court of Appeals for the 6th Circuit reversed the district court’s finding. Writing separately, Judges Alice Batchelder and Julia Smith found that the plaintiffs – whose injuries they deemed conjectural, self-imposed, and likely to persist even if the NSA was required to obtain warrants – lacked standing to challenge the program.

In the petition for certiorari, ACLU attorney Jameel Jaffer counters not only that the plaintiffs’ injuries were sufficient for standing purposes but also that President George W. Bush has continued to claim the authority to reauthorize the program whenever he deems it necessary. The petition contends that by refraining from using certain forms of communication with clients and sources – or by traveling overseas to engage in what otherwise would be routine conversations – the plaintiffs have suffered the type of “concrete” injury necessary to satisfy Article III’s standing requirements.

The ACLU further maintains that, by simultaneously allowing the government to invoke the state secrets doctrine and requiring the plaintiffs to prove they themselves were subject to government surveillance, the lower courts in effect permitted the administration to “shield its surveillance activities from judicial review simply by refusing to disclose the identities of those whom it has monitored.”

Recounting domestic spying on suspected communists and civil rights activists in the 1950s, ’60s, and ’70s, the petition contends that previously unchecked government surveillance was precisely what prompted Congress to pass FISA in 1978. And despite the suspension of the program, the petition urges the Court to resolve the “live” question of whether Article II vests the president with inherent authority to engage in wartime surveillance outside congressional constraints.

The brief in opposition, filed by Solicitor General Paul Clement, responds that the plaintiffs lack standing, under both the Constitution and the terms of FISA itself, and that the termination of the program renders the case moot, in any event.

On the First Amendment claim, the government asserts that the 6th Circuit correctly followed the Court’s 1972 decision in Laird v. Tatum. Writing for a 5-4 majority, then-Chief Justice Warren Burger held that the mere existence of an Army data-gathering program was not sufficient to confer standing on a group of political activists alleging that its continuation would “chill” their exercise of protected speech.

Clement also contends that the plaintiffs – who did not challenge the district court’s state secrets rulings – lack standing under FISA, which only authorizes suits by “aggrieved persons” whose communications were actually “subject” to electronic surveillance. To establish standing, Clement maintains, individuals would – at a minimum – have to establish that the government sought to use against them information gleaned from any warrantless surveillance. – Ben Winograd

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