Analysis

The Supreme Court showed Monday that it is genuinely troubled that the govenment, carrying on a sweeping program of wiretaps seeking to track terrorism activity, may be putting lawyers in a serious professional and ethical bind as they represent individuals potentially caught up in that eavesdropping. It was not immediately clear, though, whether that worry was deep enough to lead the Court to give those attorneys a right to sue to challenge the constitutionality of the global surveillance that seems to be tracking Americans’ conversations, too.

Although the government’s top lawyer in the Court, Solicitor General Donald B. Verrilli, Jr., argued that no one should be allowed in court to contest this program unless they can show that the government’s potential overhearing of sensitive legal conversations is close to a certainty, several of the Justices seemed wary of making it that difficult to bring a challenge when it is entirely likely that such monitoring has occurred, or will occur. Indeed, some of the Justices — especially Justice Ruth Bader Ginsburg — were clearly put off by the prospect that no one would ever be able to sue, not even lawyers who had actually cut back on how they represent their clients out of fear of being monitored.

The Solicitor General did not appear to have scored a hit when he argued that, if lawyers were cutting back on how they dealt with their clients, they were doing so because of ethical restraints, not because of the government’s surveillance. Justice Elena Kagan, in particuarly, seemed offended by that point. She was Verrilli’s most energetic challenger.

Verrilli’s strongest point, though, was that the Justices could trust a specialized federal court, the Foreign Intelligence Surveillance Court, which operates entirely in secrecy, to act as a sufficient check on excessive use of foreign intelligence wiretapping. Justice Antonin Scalia, in particular, was a strong defender of indulging in just that kind of trust. If there are constitutional violations, Scalia said, that court will ferret them out.

In the end, there did appear to be a distinctive line-up of Justices on opposite sides of whether anyone could sue over the program, with four looking for a way to recognize that option for someone, and four skeptical about drawing the courts into the oversight of a highly sensitive national security program. As is often the case, that made it seem that the ninth Justice, Anthony M. Kennedy, would be holding the decisive vote on the question.

Kennedy at one point appeared to be convinced that the government was, in fact, making full use of what he called the “wide-ranging power” to expand the global eavesdropping under expansive changes enacted by Congress in 2008. “It is hard to think that the government is not using all of its powers to protect the country,” Kennedy said, suggesting that the challengers might well be right that the expanded program was so broad that it was actually picking up many sensitive conversations that might not have been monitored in the past.

And, Kennedy added, a lawyer who was representing an individual who might be targeted as a potential terrorist would actually “engage in malpractice” if that attorney did not take steps to protect conversations with the client or with the client’s family members from being monitored. Picking up on Justice Kagan’s repeated comments about lawyers’ ethical obligations to their clients, Kennedy appeared tempted to conclude that lawyers had, in fact, already suffered professional harm that might be sufficient to give them “standing” to sue to challenge the program.

Jameel Jaffer, the American Civil Liberties Union lawyer representing the lawyers, journalists, and human rights researchers who are attempting to sue to challenge the expanded surveillance, sensibly sought to drive home the point of harm to those groups’ professional interests, by citing specific examples of how they had curtailed their work in the face of a “reasonable risk” that, if they did not take such steps, the government would be eavesdroppiing on critical telephone calls, e-mails, and other communications with sources overseas. Justice Kagan strongly encouraged him to lay out those specifics to make his case stronger.

Jaffer had some trouble with Justice Scalia and the other conservative Justices, in trying to establish that a “reasonable risk” of being overheard was sufficient to prove that the government was, in fact, tapping into sensitive lawyer-client or journalist-source conversations. Along with Justice Scalia, Justice Samuel A. Alito, Jr., appeared least sympathetic to the challengers. He told Jaffer that the government has been using wiretapping for more than forty years to try to track criminals, and yet there is no court ruling that establishes that a lawyer will be entitled to sue just because there was only “a reasonable risk” that lawyer-client communication would have been monitored.

Chief Justice John G. Roberts, Jr., said that it was not enough to get a lawyer into court that the government was actually using its expanded surveillance authority; the lawyer also had to show that sensitive conversations were being tapped. He displayed definite skepticism about whether Jaffer had shown that.

However, Jaffer’s argument must have made some headway, as it prompted Solicitor General Verrilli in his closing rebuttal to argue that the lawyers and other challengers were actually trying, with their lawsuit, to “invalidate a vital” program of searching for foreign intelligence that represents a threat to the country. Kagan, though, moved immediately to try to blunt that national security emphasis by saying that the challengers may not have a case at all, if their case ever reaches the merits, and that all they were seeking now was a chance to get into court.

However the case may ultimately turn out, the atmospherics of the oral argument on it Monday suggested quite strongly that this was may well be a closer case than had been anticipated last May when the Court agreed to hear the government’s petition challenging a lower court’s finding of standing to sue.

Recommended Citation: Lyle Denniston, Argument recap: Sensitive to lawyers’ dilemma, SCOTUSblog (Oct. 29, 2012, 12:55 PM), https://www.scotusblog.com/2012/10/argument-recap-sensitive-to-lawyers-dilemma/