A number of civil rights groups including PEN, will be represented by the ACLU in a Supreme Court case on the legality of the US government's program of mass, warrantless surveillance.
The groups went to court in July 2008 to overturn provisions of the FISA Amendments Act that allow the dragnet surveillance of American's international emails and phone calls, arguing that the expectation of monitoring harms their ability to communicate freely with international clients and colleagues. Both the Bush and Obama administrations have sought to have the suit dismissed on the ground that because the groups cannot show that their communications have been monitored under the secret program, they cannot demonstrate they have been harmed by the program and so lack "standing" to sue. The Second Circuit Court of Appeals rejected that logic, ruling that PEN and its co-plaintiffs have a reasonable basis to fear that the government may be monitoring their conversations under the terms of the law, and that the groups should be allowed their day in court.
The Obama administration appealed that decision, and today's announcement means that the Supreme Court will review the standing question later this year. The ACLU, which is representing PEN and its co-plaintiffs, will argue the case.
"With the FAA up for reauthorization at the end of the year, it is disappointing that we must once again argue the standing question instead of examining the legality of the program itself," said Peter Godwin, president of PEN American Center. "For us, the important question is whether the system of checks and balances works, so that laws allowing programs that are utterly secret must at least be subject to independent judicial review. We look to the Supreme Court to uphold our right to clarify how the NSA's surveillance program affects our organization's sensitive international communications."