In 1978, Congress passed, and the President signed into law the Foreign Intelligence Surveillance Act (“FISA”), which established procedures for federal officials to follow when they conduct wiretaps (listening to private conversations) to gather information about activities outside the United States.  In a typical, criminal investigation involving activities inside the United States, when police want to wiretap a suspect’s communications, the police must ordinarily obtain a warrant from a judge by stating probable cause that the target of the wiretap is engaged in some sort of criminal activity. Although these proceedings occur without any notification to the person whose phone will be wiretapped, ultimately the judge’s decision is made public.

FISA, however, provides a different set of secretive rules for federal officials to follow when they are gathering foreign intelligence.  While FISA’s basic procedures are similar to those of a typical criminal investigation, one of the most controversial aspects of FISA is its creation of the Foreign Intelligence Surveillance Court (“FISC”).  Unlike an ordinary court, the FISC is often referred to as a “secret court” because its proceedings and orders generally are not available to the public.  When federal agents want to wiretap individuals to gather foreign intelligence, the agents must submit an application to the FISC judge, stating, among other things, the identity of the wiretap target and the agents’ reasons for believing that the target is working for a foreign power.

Opinion of the Court of Appeals

The plaintiffs then appealed the District Court’s decision to the United States Court of Appeals for the Second Circuit.  The Second Circuit reversed the District Court, held that the plaintiffs did have standing, and sent the case back to the District Court to determine whether the FAA is constitutional.  The plaintiffs, the Second Circuit held, had a reasonable fear that their communications would be intercepted under the procedures established by the FAA.  The plaintiffs then incurred significant costs “as a direct result of that reasonable fear.”  The Second Circuit further held that the FAA “creates an objectively reasonable likelihood that the plaintiffs’ communications are being or will be monitored under the FAA. . . . The plaintiffs need not show that they have been or certainly will be monitored.”

The government then petitioned the Supreme Court for a writ of certiorari.  The Court granted cert and scheduled oral arguments for Monday, October 29th.

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Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007)

Massachusetts and other plaintiffs sued to force the EPA to begin regulating automobile emissions of greenhouse gases.  The Supreme Court held that Massachusetts had standing to sue the EPA because, among other things, Massachusetts could stand to lose parts of its significant length of coastal land if sea-water levels rose.

Summers v. Earth Island Institute, 555 U.S. 488 (2009)

The plaintiffs, a group of environmental organizations, sued the U.S. Forest Service to challenge various Forest Service regulations affecting timber-salvage projects and small fire rehabilitation.  The Supreme Court held that the plaintiffs did not have standing because, while one of the organizations’ members had visited National Forests in the past and intended to visit National Forests in the future, he could not identify which National Forests he intended to visit or whether the challenged regulations would affect those particular National Forests.

Boumediene v. Bush, 553 U.S. 723 (2008)

 Although Boumediene was not a case about standing, it is the most recent Supreme Court cases related to the so-called war on terror. Accordingly, the Justices’ general views towards the legal issues surrounding national security could potentially change the way they view the standing issue in Clapper.  As many of the cases discussed above demonstrate, standing is a doctrine that has been invoked quite frequently in environmental litigation; to the contrary, its invocation in national security-related cases is relatively rare.  Indeed, in the Second Circuit, one of the government’s arguments was that the national security context of Clapper should affect the way the court addresses standing.  In Boumediene, the Court held that Congress could not prohibit alleged terrorists held at Guantanamo Bay from seeking a writ of habeas corpus (judicial review of their detention).  In other words, the Court held that alleged terrorists must be given some way of challenging the legality of their detention.

The Supreme Court’s standing doctrine requires that an injury be imminent and not simply an abstract, conjectural complaint about a government action.  The respondents have failed to show that their communications are in imminent danger of being intercepted and instead have simply stated that they “believe” that their communications will be intercepted under the FAA.  In order for the respondents to be “injured” for standing purposes, a number of events must occur: the government must choose to intercept communications with the respondents’ foreign contacts; the government must choose to use the FAA to intercept the communications; the FISC must authorize the interception; and the government must intercept communications to which the respondents are a party.  This chain of events is too speculative to say that the respondents’ injury is “imminent” as standing doctrine requires.

Moreover, to the extent that the plaintiffs have suffered present harms–i.e., their expenses incurred by communicating non-electronically–these injuries are self-inflicted.  To allow plaintiffs to gain standing in this manner would allow them to “manufacture” standing where none exists.  To the extent that the respondents have curtailed or otherwise “chilled” their communications with their foreign contacts out of a fear that those communications will be intercepted under the FAA, Laird v. Tatum forecloses standing.  Fear of having one’s communications intercepted is likewise self-inflicted and thus cannot amount to an “injury” for standing purposes.

Finally, even if the respondents are injured by their fear that the FAA’s procedures will be used to intercept their communications, the respondents still do not have standing because the harm is not redressable by a court: if the FAA were struck down, the government has a variety of other non-FAA means of intercepting communications to which the respondents might inadvertently be a party.

The respondents have already suffered real, concrete injuries-in-fact by incurring economic and professional costs to avoid having their foreign communications intercepted.  The respondents have had to either “travel long distances at considerable expense to collect information in person that they otherwise would have been able to collect over the phone or by email,” or have had to cease communicating with certain foreign sources altogether.  Either of these is clearly an injury that, on its own, supports standing.  Further, these injuries are not self-imposed, as the government argues.  The respondents do not have to choose between either suffering the professional and ethical consequences of having their communications intercepted or incurring the costs that the respondents did to avoid such problems.

Laird v. Tatum is distinguishable from this case because the plaintiffs in that case did not suffer any injury.  Here, however, the plaintiffs clearly have suffered an injury by changing their professional conduct–at considerable expense–to avoid having their communications intercepted.  Moreover, Laird does not mean that plaintiffs never have standing to challenge government surveillance programs.

Further, The FAA caused the respondents’ concrete injuries described above.  Because the respondents communicate with “precisely the sorts of individuals that the government will most likely seek to monitor,” it is likely that the FAA will be used to monitor the respondents’ communications and thus, the respondents’ actions were reasonable.

Finally, even absent the respondents’ present injuries, the respondents have standing because they have an “actual and well-founded fear” that the government will intercept their communications using the FAA’s procedures.

The Foreign Intelligence Surveillance Court and Government Secrets - Justice Badge (50 points)