WASHINGTON — Supreme Court justices were surprisingly skeptical Monday about arguments by a top Justice Department lawyer who in a hearing sought to squelch an anti-wiretapping lawsuit brought by lawyers, journalists and activists.
At issue in the surveillance case is the government's power to secretly monitor international phone calls and email under a stepped-up monitoring policy approved by Congress four years ago.
It allows U.S. spy agencies to target people or places overseas and to intercept all the phone calls and email to and from these people or places.
Almost inevitably, this means American lawyers or activists who speak with clients and contacts in places such as Afghanistan or Pakistan will have their messages overheard, and it was those lawyers and activists who filed suit.
But U.S. Solicitor Gen. Donald Verrilli Jr., defending the National Security Agency, called this "speculation" insufficient to justify a lawsuit.
Justices Ruth Bader Ginsburg, Elena Kagan, Stephen G. Breyer and Anthony M. Kennedy took issue with Verrilli. Their comments and reactions from other justices during the hourlong argument suggest that the court might well allow the lawsuit to proceed.
Still, the justices focused only on whether the plaintiffs had standing to sue the government. They did not provide a view on whether such surveillance would be deemed an "unreasonable search" under the 4th Amendment.
In the past, the court has insisted that plaintiffs point to a particular injury or harm as a condition for suing. Breyer said the plaintiffs had done that.
"I assume it is an injury for an American speaking in America to have his communication intercepted against his will by the American government. We take that as a harm," he told Verrilli.
Kagan said lawyers who represent foreign clients accused of terrorism-related offenses cannot speak to them on the phone. They said they had to fly overseas to speak to them in person. That suggests these plaintiffs have suffered some harm because of the prospect of their calls being overheard, she said.
But Verrilli stressed that none of these plaintiffs can prove that their messages have been overheard and intercepted.
Ginsburg said they can reasonably believe that it is likely. "It's not speculative," she said, "if the government being given this authority by Congress is going to use it."
Kennedy said he too found it hard to believe that the NSA is not engaged in broad monitoring of international calls.
"The government has obtained this extraordinarily wide-reaching power," he said. "It is hard for me to think the government isn't using all of the powers at its command under the law."
The plaintiffs were led by Amnesty International and were represented by the American Civil Liberties Union. They are suing James R. Clapper, director of National Intelligence. Last year, the U.S. 2nd Circuit Court of Appeals in New York allowed the suit to proceed, and the justices heard the government's appeal in Clapper vs. Amnesty International.
Although much of Washington was shut down Monday because of Hurricane Sandy, the Supreme Court went ahead with oral arguments in two cases. But with forecasters predicting that high winds would continue, the justices canceled the arguments set for Tuesday morning.