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Certiorari granted by the United States Supreme Court on May 21, 2012
Oral arguments scheduled for October 29, 2012
Petitioner: James Clapper, Jr., Director of National Intelligence
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.
In 2008, Congress amended FISA to add new procedures that federal officials must follow when they would like to wiretap communications between non-U.S. persons (for example, non-U.S. citizens) who are outside of the United States. Under the FISA Amendments Act (“FAA”), unlike FISA, federal officials do not need to specifically identify the target or facilities they would like to wiretap. Instead, under the FAA, federal officials may apply for a “mass surveillance authorization,” that is wiretap a lot of different people, by submitting to the FISC statements in which government officials swear their belief that “a significant purpose” of the wiretap “is to obtain foreign intelligence information.” Unlike the original FISA procedures, the FAA does not permit the FISC to review wiretap operations to ensure their legality. For instance, the FAA requires federal officials to follow certain procedures to ensure that they do not inadvertently wiretap American citizens. However, the FISC does not review the officials’ assurances–instead, the Attorney General and the Director of National Intelligence must do so.
This case was filed on July 10, 2008, the date on which Congress passed the FAA. The plaintiffs include Amnesty International, the Global Fund for Women, Human Rights Watch, labor unions, attorneys who represent suspected terrorists, and journalists who report news from areas of the world in which the United States has various foreign policy interests. The plaintiffs complain that because the FAA is focused on intercepting the communications of non-U.S. citizens, the FAA has the potential to unconstitutionally intercept the plaintiffs’ communications with foreign sources and clients. For example, if an attorney was communicating with a foreign client, the attorney, who is a U.S. citizen, may have his messages intercepted. The plaintiffs claimed that their individual lines of work–as international human rights groups, journalists and attorneys–required them to communicate with the types of individuals whose communications the government might attempt to intercept using the FAA. Essentially, the plaintiffs allege that the FAA violates their rights under the First Amendment and the Fourth Amendment.
In order to file a suit in federal court, the plaintiffs must have what is called “standing” to sue. Standing means that federal courts cannot constitutionally hear cases involving hypothetical, abstract, or purely ideological objections to government action.
Standing requires the plaintiffs to demonstrate three criteria.
First, the plaintiffs must prove that they were somehow injured. “Injured” in the legal sense does not simply mean that the plaintiffs were physically harmed–it could mean that the plaintiffs were harmed financially, professionally, had their constitutional rights violated, or even that the plaintiffs suffered some aesthetic harm.
Second, the plaintiffs must show that their injury is “fairly traceable” to the defendant’s actions. In other words, the plaintiffs must be able to show that there is a reason to believe that the defendants whom the plaintiffs are suing are the correct defendants.
A federal court in Manhattan dismissed the plaintiffs’ case, finding that the plaintiffs did not have standing, as they had not suffered an “injury-in-fact” that was traceable to the FAA. Thus the court could not hear the case. In other words, the court held that it could not even determine whether the FAA is unconstitutional.
The plaintiffs, however, argued that they did, in fact, have multiple injuries. First, because their respective jobs required them to communicate with individuals whom U.S. officials might target for foreign intelligence gathering, the plaintiffs claimed that after the FAA, they had “an actual and well-founded fear that their communications will be monitored in the future.” Second, the plaintiffs claimed that they had suffered financial and professional injuries. Because the plaintiffs feared that their communications would be intercepted, the plaintiffs claimed that they had “taken costly and burdensome measures to protect the confidentiality of certain communications,” such as flying directly to their foreign sources rather than communicating electronically. Nonetheless, the District Court held that the plaintiffs fears were only “speculative,” and that they could not challenge the constitutionality of the FAA.
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.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
“The judicial power [of the United States] shall extend to all cases . . . arising under this Constitution, the laws of the United States . . . [and] to controversies . . . to which the United States shall be a party.”
In an effort to gather intelligence that it believed was necessary to help reduce problems in American cities, the Army began an information-gathering mission which involved collecting local media reports and attending local meetings that were open to the public. The plaintiffs sued the Army, arguing that the Army’s information-gathering campaign chilled their First Amendment rights of free speech. The Supreme Court, however, held that the plaintiffs did not have standing because they did not allege a “specific present objective harm or a threat of specific future harm.” In other words, the Court held that the plaintiffs had not actually been injured by an Army program that simply gathered publicly-available information.
Adolph Lyons alleged that Los Angeles police officers stopped him for a traffic violation and then placed him in a chokehold, causing him to become unconscious. He sued the LAPD for, among other things, an injunction (essentially a court order to do or not do something) to stop the LAPD from using chokeholds in the future. The Supreme Court held that Lyons did not have standing to pursue an injunction against the LAPD because Lyons could not demonstrate that there was a likelihood that Los Angeles police officers would place him in a chokehold in the future. For instance, there was no evidence that it was the policy of the LAPD to use chokeholds on every citizen pulled over for a traffic violation. The Court, however, also noted that Lyons might have had standing if he had been able to prove that there was a likelihood of allegedly-unconstitutional government action in the future.
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.
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.
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.
This chart could help with predicting the outcome of the case and how the Justices will vote. But be
careful: a lot will depend on the facts of this case and not how someone has voted in the past. [Note: the Justices are listed in order of seniority with the Chief Justice first.]
Lujan v. Defenders of Wildlife (1992)
Friends of the Earth v. Laidlaw (2000)
|Massachusetts v. EPA (2007)||
Summers v. Earth Land Institute (2009)
|S||The Justice voted that the plaintiff had standing.|
|NS||The Justice voted that the plaintiff did not have standing|
|Not yet on Court||The Justice was not yet on the Court when the case was decided.|
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.
Aside from its textual origins in Article III of the Constitution, the Supreme Court has given many reasons for requiring that plaintiffs have standing to sue. For example, the Court has stated that a rigid standing doctrine promotes the constitutional separation of powers. That is, under our Constitution, it is generally the Executive’s job to enforce the law and the judiciary’s role to interpret the law. Many standing cases arise when individuals try to force the Executive to enforce already-existing laws. Accordingly, so the Court’s argument goes, without a standing doctrine, the Judiciary would essentially be ordering the President to enforce the law, contrary to the Constitution’s delegation of that power to the President. What do you think of this reasoning? Is a court acting properly if it orders the President to enforce the law?
Similarly, many standing cases arise when environmental organizations sue either polluters or the government to comply with environmental regulations. Is federal court the right forum to achieve these goals, or do you think that lobbying Congress to pass more stringent environmental regulations is? What about lobbying the President and the EPA to enforce laws and regulations that are already on the books? Or has experience demonstrated that those methods of promoting environmental causes do not achieve results? Write a 250 word blog post in which you consider the merits of these arguments.
One of the more controversial aspects of FISA is that it creates the Foreign Intelligence Security Court–a so-called “secret court” whose proceedings and orders are generally not available to the public. What do you think of this? Supreme Court Justice Louis Brandeis once famously stated that “sunlight is . . . the best of disinfectants.” In other words, making a process transparent and open helps ensure that it is ethical, legal, and otherwise proper. Does Justice Brandeis’s comment ring true with the FISC? Or do you think that there are other concerns to take into account as well? Does the fact that the FISC issues warrants relating to foreign intelligence–information often vital to national security–change your opinion? Are there certain things that a democratic government has the right to keep secret from the people? Write a 250 word blog post in which you consider the merits of these arguments.
The questions surrounding the post-9/11 War on Terror have been among the most contentious legal issues in the past decade. Not only FISA (which predates 9/11 by 23 years), but the FAA and the USA PATRIOT Act have changed the legal landscape surrounding the federal government investigatory abilities, generally expanding the scope of law enforcement officers’ authority to engage in surveillance. Many of these laws–the PATRIOT Act in particular–have been subject to withering criticism. At the same time, however, many defenders of these laws argue that increased surveillance authority is vital to fighting the global War on Terror. Do some basic research on some of the PATRIOT Act’s provisions. (For an excellent overview of the PATRIOT Act’s basic provisions as well as the pros and cons of each provision, check out this article.) Do you think that these provisions adequately balance the need to protect civil liberties against the need for robust national security? Is there an appropriate balance between national security and civil liberties? Should that balance shift during wartime? What of the fact that some of the PATRIOT Act’s provisions regularly “sunset”? That is, they expire after a predetermined amount of time and must be renewed by Congress on a regular basis. Using the PATRIOT Act’s provisions as a springboard, write a 250 word blog post in which you consider the merits of these arguments.