On October 29, ACLU National Security Project Legal Fellow Mitra Ebadolahi headlined "Today at the Supreme Court: The Right to Challenge Warrantless Wiretapping," saying:
At issue are fundamental constitutional rights. Justices heard Jaffer's powerful argument. "For example, David Nevin has served as defense lawyer for accused terrorists."
He needs secure telephone and online communications with "experts, witnesses, family members, and his clients abroad."
It's essential to building an effective defense. Lawyers are also obligated to assure confidentiality for cooperating witnesses and other sources. Their profession ethically binds them. The same holds for journalists.
Government lawyers argued that ACLU clients don't know for sure they're being surveilled. Moreover, identities of people spied on is secret. National security requires they not be identified or disclosed. As a result, plaintiff's suit has no merit.
Several justice "appeared rightfully troubled by this Kafkaesque position, expressing concern that, under the government's interpretation, no one would be able to challenge the law--ever."
Justice Breyer said risk and certainty are just matters of degree. "It might not be a storm tomorrow. I mean, you know, nothing is certain," he explained
Justice Antonin Scalia disagreed. He claimed the case lacks "standing." In other words, plaintiffs can't prove they're monitored or harmed. According to the ACLU:
"The government theory of standing would render real injuries nonjusticiable and insulate the government's surveillance activities from meaningful judicial review."