Drawing a Line:
The Right to Privacy

December 3, 2012

In October, the U.S. Supreme Court heard debates over who has the constitutional right to challenge current surveillance laws. The ACLU’s Jameel Jaffer, lead attorney for the case, reports back.

Following up on my last dispatch about U.S. surveillance law, I conducted a second interview with Jameel Jaffer, Director of the ACLU’s Center For Democracy, three days after the Supreme Court heard oral arguments for Clapper v. Amnesty International.

The case is an important one, taking on a law that allows the National Security Agency (NSA) to monitor and retain Americans’ international communications without a warrant. But there is a caveat. Not yet able to question the constitutionality of the 2008 FISA Amendments Act, Jameel Jaffer—representing a broad coalition of human rights workers, journalists and lawyers—must first argue that his clients have the right to challenge the law in court. This narrow issue is what the Supreme Court will soon resolve. If successful in its argument, the ACLU will then be able to return to the district courts and begin the work of creating a legal challenge to the FISA Amendment Act. If the ACLU loses here, it is difficult to see who will ever have standing or the right to challenge the law in the future.

There were reasons for optimism after the oral arguments. Only seconds after Solicitor General Donald B. Verrilli Jr. gave opening remarks on why the ACLU-led group should not be granted standing in court to challenge the FISA Amendment Act, Chief Justice Sonia Sotomayor interrupted him by asking the key question of the day: “Is there anybody who has standing?” Justices Ruth Bader Ginsburg, Elena Kagan and Anthony Kennedy all appeared to understand what was at stake in the case and frequently challenged Verrilli.

In my interview with Jameel, we spoke about the psychology behind preparing for his first Supreme Court oral argument, his surprise at the sympathetic and engaged response from five judges on the Supreme Court Bench, and what he’d like to see change in terms of surveillance issues in democratic societies.