AP Photo by Seth Wenig
A coalition of lawyers and journalists could not convince the U.S. Supreme Court to allow them to challenge the constitutionality of a new law expanding the federal government’s authority to secretly monitor Americans’ international communications with individuals suspected of acts of terrorism.
The U.S. Supreme Court’s 5-4 decision in Clapper v. Amnesty International USA in February ultimately did not judge the constitutionality of the new monitoring powers enacted through amendments passed by Congress in 2008 to the Foreign Sovereign Immunities Act called the FISA Amendments Act of 2008.
Instead, the Court ruled that the coalition — a group of attorneys, journalists, and labor, legal, media, and human rights organizations whose work requires them to engage in sensitive telephone and e-mail communications with people outside the U.S. — did not have “standing” under Article III of the U.S. Constitution to challenge the law in court based on their ability to show it provided concrete and imminent injury to them.
Justice Samuel A. Alito, Jr., who wrote the majority opinion, concluded that the challengers’ lawsuit was based upon a “highly attenuated chain of possibilities” that would have to fall into place before their communications might be at risk of eavesdropping. The opinion concluded that the alleged harms were not “certainly impending” and therefore did not give them a right to sue.
Further, the majority opinion went on to reject arguments by the coalition of challengers that they are almost certain to be monitored by the surveillance program in the future and are suffering harm because they had taken costly and burdensome measures to protect the confidentiality of their international communications.
“Respondents cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending,” Justice Alito wrote in the majority opinion. “We therefore hold that respondents lack Article III standing.”
And even if some of the communications of the coalition members were monitored through the program, the majority opinion stated that the surveillance may not be able to be traced back and blamed on the FISA amendments.
“Because respondents do not face a threat of certainly impending interception (under the statute) the costs that they have incurred to avoid surveillance are simply the product of their fear of surveillance,” Alito wrote.
Enough harm to demonstrate standing?
At issue in the high Court’s Clapper decision was whether the group of challengers could demonstrate enough harm to sue the federal government over amendments to the Foreign Intelligence Surveillance Act. The amendments would allow the government to secretly monitor international communications even if one party is in the United States.
The amendments permit the federal government to engage in overseas surveillance of suspected terrorists under limited circumstances.
Such electronic surveillance is permitted only after the government has sought and obtained the consent of a special court called the Foreign Intelligence Surveillance Court — essentially, a secret spy court with powers to issue secret warrants authorizing officials to perform wiretaps and searches.
The coalition had hoped to sue to over the constitutionality of the law and obtain an injunction against such surveillance. On the same day the amendments were passed in 2008, they brought a lawsuit over the constitutionality of the broadened surveillance powers given to the government’s executive branch under the FISA amendments.
The provisions changed the procedure for the federal government’s interception and acquisition of telephone and e-mail communications between U.S. citizens and people abroad.
The FISA Amendments Act of 2008 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 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 Reporters Committee filed a friend-of-the-court brief in September 2012 asking the U.S. Supreme Court to allow journalists to challenge the law.
“Oftentimes, a source’s willingness to provide a journalist with truthful information about significant matters of public interest and concern is wholly dependent on an assurance that the source’s identity will not be revealed, thereby exposing him or her to retaliation,” the brief argued. “The amendments at issue, however, hamper the formation of these important journalist-source relationships by eliminating journalists’ ability to make good-faith promises of confidentiality to international sources.”
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 2011 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 government’s request for reconsideration by the full Second Circuit was rejected the following September, prompting the government to appeal to the U.S. Supreme Court.
Advocates of the coalition hoping to challenge the constitutionality of the FISA amendments were upset with the U.S. Supreme Court’s reversal of the Second Circuit.
“It’s a disturbing decision,” said American Civil Liberties Union Deputy Legal Director Jameel Jaffer, who argued the case before the U.S. Supreme Court on Oct. 29. “The FISA Amendments Act is a sweeping surveillance statute with far-reaching implications for Americans’ privacy. This ruling insulates the statute from meaningful judicial review and leaves Americans’ privacy rights to the mercy of the political branches.”
“Justice Alito’s opinion for the court seems to be based on the theory that the FISA Court may one day, in some as-yet unimagined case, subject the law to constitutional review, but that day may never come,” Jaffer said in a statement. “And if it does, the proceeding will take place in a court that meets in secret, doesn’t ordinarily publish its decisions, and has limited authority to consider constitutional arguments. This theory is foreign to the Constitution and inconsistent with fundamental democratic values.”
Justice Stephen Breyer’s dissenting opinion said that the Court should have used a standard of “probabilistic injuries” to determine standing. If that were used in this case, the dissenters said, the challengers would have met it, and their case could have gone ahead to trial.
The dissenting opinion contended that their research turned up not a single case in which the standard used by the majority — that is, that an injury must be “certainly impending” — was ever used to deny a right to sue in federal court.
“The majority cannot find support in cases that use the words ‘certainly impending’ to deny standing,” Justice Breyer wrote in dissent. “While I do not claim to have read every standing case, I have examined quite a few, and not yet found any such case.”
“The Reporters Committee agrees with Justice Breyer’s dissent, which argued that the respondents showed more than a purely speculative harm to their constitutionally protected activities and did have standing to question the law,” Reporters Committee Legal Defense Director Gregg P. Leslie said in a statement after the Court’s opinion was released.
“Journalists need to contact sources freely — including those overseas who may be affiliated with suspected terrorist organizations,” Leslie added. “The probability of having their calls intercepted is real and justified, and it would do irreparable harm to the reporter-source relationship if there were any doubt about confidentiality. Journalists need to tell the American people about these controversies, and to get to the truth they need to communicate with often questionable characters.”
Little is known about how the FISA Amendments Act has been used. In response to a Freedom of Information Act lawsuit filed by the ACLU, the government revealed that every six-month review of the act had identified “compliance incidents,” suggesting either an inability or an unwillingness to properly safeguard Americans’ privacy rights. The government has withheld the details of those “compliance incidents,” however, including statistics relating to abuses of the act.