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Reporters harmed by warrantless wiretapping, entitled to challenge the law

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  1. Newsgathering
A journalist’s ability to interview sources about foreign and national security issues got a boost recently when a federal appellate…

A journalist’s ability to interview sources about foreign and national security issues got a boost recently when a federal appellate court found that the U.S. government’s wiretapping of Americans’ international communications without a warrant or adequate judicial supervision sufficiently harms reporters.

The decision, which allows an earlier ruling to stand, provides some protection to the constitutional right to gather news by the use of confidential sources. At the same time, however, it may provide little assurance that journalists’ communications with these sources are free from government eavesdropping.

At the very least, it allows a legal challenge to expanded wiretapping authorization and weakened judicial oversight in antiterrorism investigations to move forward, saving the claim from dismissal on procedural grounds. The government could, however, ask the U.S. Supreme Court to review the case.

Challenging government monitoring

On the same day the amendments were passed in 2008, a collection of attorneys, journalists, and labor, legal, media, and human rights organizations brought suit in Amnesty International v. Blair (now named Amnesty International v. Clapper) over the constitutionality of broadened surveillance powers given to the government’s executive branch by revisions to the Foreign Intelligence Surveillance Act of 1978.

The provisions changed the procedure for the federal government’s interception and acquisition of telephone and email communications between U.S. citizens and people abroad.

The new law allows the U.S. Attorney General and the Director of National Intelligence to immediately intercept communications without seeking court approval or showing cause for such interception, as long as the communication is “important to the national security of the United States,” and may be lost if not collected immediately.

It requires the government to submit a certification to the Foreign Intelligence Surveillance Court — a secret spy court with powers to issue secret warrants authorizing officials to perform wiretaps and searches — within seven days after monitoring the communication. However, that certification does not have to state whom, where or why the government is monitoring. If the surveillance court rejects the government’s certification, officials may continue intercepting communications while an appeal of that ruling is pending.

Essentially, the amendments give “the executive branch sweeping and virtually unregulated authority to monitor the international communications . . . of law-abiding U.S. citizens and residents,” putting a large number of journalists who frequently conduct interviews with international sources at risk of interception, according to the plaintiffs, which included weekly news magazine The Nation.

“The [amendments] eliminate the ability of journalists to make good-faith promises of confidentiality to international sources,” The Reporters Committee for Freedom of the Press said in a friend-of-the-court brief it submitted in support of the plaintiffs. “By hampering the formation of confidential relationships between journalists and their sources, the law prevents journalists who cover foreign and national security issues from breaking fast-moving news stories and investigating deeper issues crucial to the public. The [law] runs afoul of the constitution and severely harms journalists’ performance of their duties to gather and disseminate news to benefit the public.”

Specifically, if reporters’ communications with their sources were overheard, those sources’ identities, political activities and other sensitive information would be disclosed, exposing them to violence and retaliation by their own governments, private citizens and the U.S. government, and deterring them from providing vital information to journalists, the plaintiffs asserted.

A federal trial court in New York dismissed the case because the plaintiffs lacked legal “standing” to challenge the law. That is, the court concluded the plaintiffs failed to demonstrate that the challenged statute personally caused them a legally sufficient injury. In the court’s view, the plaintiffs’ asserted injuries — namely, the chilling interference with constitutionally protected reporter-source relations and the costly steps plaintiffs took to avoid the government monitoring — were not sufficient to allow the named plaintiffs to challenge the law.

On appeal, the U.S. Court of Appeals in New York (2nd Cir.) in March overturned the trial court’s ruling. The three-judge panel unanimously concluded the plaintiffs had provided sufficient evidence of particularized harm to demonstrate legal standing.

The court’s opinion noted that the plaintiffs submitted evidence that their professions led them to communicate with clients, sources and other individuals who were likely to be the targets of surveillance, and had taken reasonable but costly steps to protect their communications as a result.

Specifically, the plaintiffs incurred the expensive burdens of traveling to communicate or to obtain the information in person rather than electronically. In other instances, the plaintiffs simply opted to not communicate certain information they otherwise would have provided by e-mail or telephone.

“[T]he various groups of plaintiffs. . . have established that they have legitimate interests in not being monitored,” the appellate court panel said. “The plaintiffs’ uncontroverted testimony that they fear their sensitive international electronic communications being monitored and that they have taken costly measures to avoid being monitored — because we deem that fear and those actions to be reasonable in the circumstances of this case — establishes injuries in fact that we find are causally linked to the allegedly unconstitutional [2008 amendments].”

Moreover, the court held it was reasonable for the plaintiffs to assume the 2008 amendments would lead to greater government surveillance.

“That both the executive and the legislative branches of government believe that the [2008 amendments authorize] new types of surveillance, and have justified that new authorization as necessary to protecting the nation against attack, makes it extremely likely that such surveillance will occur,” it said.

Divisive opinions

The government asked the full Second Circuit to hear the case, a request it denied by a close margin in September. Several judges disagreed with that decision and wrote or joined colleagues’ dissenting — and at times scathing — opinions.

Many of the dissenting judges characterized as “speculative” the plaintiffs’ assertion that their foreign sources are likely to be government targets of eavesdropping — a characterization described by the judge who wrote the panel decision as “hard to take seriously” given that the overseas contacts include, among other international terrorism suspects, alleged al-Qaida members and those captured and detained at Guantanamo Bay, and their families.

Notably, Judge Reena Raggi’s opinion on this issue is likely to provide little comfort to journalists who rely on the ability to promise these international sources confidentiality.

“If the United States intelligence community is as inclined to monitor such persons’ communications as plaintiffs assert, then [preventing enforcement of the amended law] will merely eliminate one of several means for achieving that objective. It will not shield plaintiffs or their contacts from the universe of alternative electronic surveillance options available to the government,” Raggi said, explaining why a successful challenge of the surveillance law amendments by the plaintiffs would not adequately resolve their concerns, a requirement to establish legal standing to bring a claim.

“After FISA’s original enactment [of the surveillance law], warrantless radio surveillance of international communications carried by satellite and wire surveillance of international communications performed on foreign soil or offshore continued to be conducted [despite the law’s requirements], as long as United States persons located in this country were not specifically targeted. Thus, even if. . . surveillance [under the amended law were prohibited], the government could still conduct surveillance by other means.”

In addition, a theme running throughout all the dissents was an allegation that the panel gave too much credence to the plaintiffs’ claims of harm.

“To support the otherwise-mysterious idea of injury and causation to these plaintiffs, the panel opinion relies entirely (even credulously) on affidavits submitted by the plaintiffs, describing their supposed anxieties. But these affidavits employ all the lawyer’s arts to convey a devious impression,” Second Circuit Chief Judge Dennis Jacobs said in his dissent.

“The only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation.”

Jacobs likened the “frivolous” lawsuit to a plaintiff’s allegation that “the CIA is controlling him through a radio embedded in his molar.”

Although it lacked the gratuitous attack on the plaintiffs and their lawyers like the one that made up a large part of Jacobs’ dissent, Raggi’s opinion also argued that the plaintiffs’ claimed injuries were insufficient to establish legal standing to challenge the law.

Under Supreme Court jurisprudence, the plaintiffs were required to show that the government’s unlawful electronic surveillance was imminent, or “certainly impending,” the judge said. Because the appellate panel found the plaintiffs’ mere fear of. . . interception under the statute sufficiently harmful to support standing, the full appellate court should have weighed in to address this “questionable” standard, she added.

“On [the plaintiffs’] theory, every mobster’s girlfriend who pays for a cab to meet with him in person rather than converse by telephone would be acting on a fear of interception and, therefore, have standing to challenge that statute,” Raggi said. “In fact, Supreme Court precedent provides otherwise, holding that a subjective fear of challenged government conduct is insufficient to support standing.”

The government has until late December to decide whether to ask the Supreme Court to hear the case.

“It is not the six judges who dissent from the decision [to deny rehearing by the full Second Circuit] who close any courthouse doors. Rather, it is our remaining colleagues who decline to consider [the issue],” Raggi said. “There is, however, another courthouse, and those of us here in dissent can only hope that its doors will be opened for further discussion of this case.”