If the NSA is doing its job, it's "almost nearly certain" that the lawyer has been the target of surveillance under the FISA Amendments Act, he said.
But the groups challenging the law may have already been spied upon before the 2008 law, Verrilli said. If a person was spied upon under another program, he doesn't have the standing to challenge the FISA Amendments Act, Verrilli said.
Justice Antonin Scalia suggested Verrilli was parsing the injury suffered by the groups challenging the law. "Do you know any case where we cut the bologna that finely?" he said. "What you're saying is, they will be injured anyway."
Justices also questioned the position of American Civil Liberties Union lawyer Jameel Jaffer, representing the groups challenging the law. Jaffer told the court that the groups had a "substantial risk" of being surveillance targets.
But there's a "huge difference" between a substantial risk and certainly impending, the standard the court has recognized in the past, said Chief Justice John Roberts. "The whole question is whether your clients have been injured," Roberts said.
The groups challenging the law make international phone calls and send email messages to people who are likely the targets of NSA surveillance, Jaffer said. "We know that the government is using this statute," he added.
Justices asked what injuries the groups have experienced. In some cases, journalists have predicted they won't be able to get the same information from international sources, and lawyers have had to curtail telephone calls or talk in generalities with clients, Jaffer said. In other cases, groups have had to travel internationally instead of use the telephone or email, he added.
Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's e-mail address is firstname.lastname@example.org.