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Supreme Court to hear government eavesdropping appeal

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Filed: Timeline

(Reuters) - The Supreme Court agreed on Monday to hear an Obama administration appeal arguing that attorneys, journalists and human rights groups have no right to sue over a law making it easier for U.S. intelligence agencies to eavesdrop on foreign communications.

The justices said they would review a ruling by a U.S. appeals court in New York that the plaintiffs have the legal right to proceed with their challenge to a 2008 amendment to the law, the Foreign Intelligence Surveillance Act.

The section at issue allows intelligence agencies to eavesdrop on overseas communications, including phone calls and e-mails, more widely and with less judicial oversight than in the past.

The change meant the U.S. government does not have to submit to a special judge an individualized application to monitor a non-American overseas. Instead, the U.S. attorney general and the director of national intelligence can apply for mass surveillance authorization from the judge.

The American Civil Liberties Union (ACLU) sued the attorney general and the director of national intelligence in 2008 in challenging the law as unconstitutional.

The plaintiffs argued they had the legal standing to proceed with their lawsuit because they suspected their communications with people abroad were being monitored.

They said they had reasonable fear of injury from the surveillance and had to take costly, burdensome steps to protect the confidentiality of their communications.

The appeals court agreed and reversed a ruling by a federal judge who dismissed the lawsuit on the grounds the plaintiffs lacked the standing to sue because they could not show they had been actually harmed by the surveillance.

The appeals court did not address the merits of the constitutional challenge and that issue will not be before the Supreme Court either.

But even on the standing issue, the Obama administration cited national security in its appeal.

Solicitor General Donald Verrilli said Congress in adopting the law regulated "the nation's exceedingly important need to conduct foreign intelligence surveillance" targeting certain non-Americans. The litigation threatened to disrupt important activities "protecting the national security," he said.

The ACLU opposed the government's appeal.

"It's crucial that the government's surveillance activities be subject to constitutional limits, but the administration's argument would effectively insulate the most intrusive surveillance programs from judicial review," Jameel Jaffer, the ACLU's deputy legal director, said.

The Supreme Court will hear arguments in the case during its upcoming term that begins in October, with a ruling likely early next year.

The Supreme Court case is James Clapper v. Amnesty International USA, No. 11-1025.


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