Supreme Court majority punts on the question of warrantless spying

The Supreme Court has ruled 5-4 that a group of human rights lawyers and researchers does not have standing to bring a constitutional challenge to the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008, a law that authorizes dragnet spying on US persons even absent identification of specific targets. (Another constitutional challenge to the law, Jewel v. NSA, is still winding its way through the courts.)

Writing for a majority joined by Justices Roberts, Scalia, Kennedy and Thomas, Justice Samuel Alito finds that the ACLU’s clients in Amnesty v. Clapper lack standing to bring a challenge to the unconstitutional statute because they cannot prove that surveillance of their emails and phone calls is "certainly impending."

The very day that the FISA Amendments Act of 2008 was signed into law, the ACLU sued the federal government arguing that the statute was unconstitutional. Its plaintiffs were a group of human rights lawyers and researchers, including attorneys representing Guantanamo detainees and Amnesty International employees who regularly communicated with the friends and family members of people held in CIA detention. 

The FISA Amendments Act authorized surveillance against categories of people, whereas the prior statute required that the government aim its collection at specific targets. Furthermore, the 2008 statute loosened the "minimization" requirements that had previously ensured that people who were not directly targeted didn’t get caught up in any authorized spying. These changes, and the fact that the ACLU's clients regularly communicated with people the government accused of terrorism, made it highly likely that their phone calls and emails were getting caught in the government's FISA Amendments Act authorized surveillance dragnet. Under these circumstances, the attorneys and researchers had to go to extreme lengths to communicate, including traveling to meet one-on-one with clients and research subjects whereas absent a legitimate fear of surveillance they could have talked on the phone or emailed.

Alito: Don't expect the courts to deal with this messy war stuff

Today a majority of the Supreme Court ruled that the ACLU and its plaintiffs do not have standing under Article III of the US Constitution to even argue the merits of their case. In contrast to the court's actions in prior cases concerning executive power overreach since 9/11, Justice Alito has here essentially punted on the judiciary's role in determining the legality of political decisions made with respect to the (seemingly never ending) "global war on terror." (Marcy Wheeler observes that this attitude doesn’t bode well if Congress and the Executive Branch decide to implement a "kill list court.")

"It's a disturbing decision. 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," said Jameel Jaffer, ACLU Deputy Legal Director, who argued the case before the Supreme Court on October 29, 2012.

Contrary to Justice Alito's stated committment to stay out of the messy political business of lawmaking in times of war, and even though the court was not tasked to rule on the merits of the constitutional challenge, Alito's opinion declares circuitously that the FISA Amendments Act of 2008 is constitutional and comports with the Fourth Amendment because Congress and the Executive say that it does. Unlike the majority, the minority declined to pontificate on the constitutionality of the FISA Amendments Act, choosing to respond strictly to the question before the court.

Into the weeds: how Justice Alito gets the standing question wrong

Citing Monstanto Co. v Geertson Seed Farms, Justice Alito writes that "To establish Article III standing, an injury must be "concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling."" Citing Whitmore v. Arkansas he posits that "[T]hreatened injury must be "certainly impending" to constitute injury in fact," and that "[a]llegations of possible future injury” are “not sufficient."

But as Justice Stephen Breyer shows writing for the minority, joined by Justices Ginsburg, Kagan and Sotomayor, "certainty is not, and never has been, the touchstone of standing." He writes:

The future is inherently uncertain. Yet federal courts frequently entertain actions for injunctions and for declaratory relief aimed at preventing future activities that are reasonably likely or highly likely, but not absolutely certain, to take place. And that degree of certainty is all that is needed to support standing here.

Breyer shows that the Court has in the past used the phrase "certainly impending" "as if the phrase described a sufficient, rather than a necessary, condition for jurisdiction."

Furthermore, the Court used "certainly impending” "as if it concerned when, not whether, an alleged injury would occur." The journalists and researchers filed the challenge to the FISA Amendments Act the day the statute was signed into law. Breyer argues that they needn’t prove that their communications were subsequently spied on within minutes or hours of the legislation’s passage, but rather that they must demonstrate a high probability that the statute would result, at some point, in the government interception of their communications. "Impending" doesn’t mean right away; it simply means sometime in the future.

Finally and most crucially, Breyer provides numerous examples of case law to demonstrate that "The Court has often found standing where the occurrence of the relevant injury was far less certain than" it is in Amnesty v. Clapper.

The ruling majority has it completely backwards, Breyer contends. The ACLU clearly demonstrates that its clients, Amnesty International researchers and human rights attorneys, are likely targets of government surveillance. There may be some unique circumstances in which the government would not intercept communications between a researcher and a family member of an accused al Qaeda operative in CIA detention, but no such circumstances have been highlighted here.

"One can, of course, always imagine some special circumstance that negates a virtual likelihood, no matter how strong," Breyer writes. "But the same is true about most, if not all, ordinary inferences about future events. Perhaps, despite pouring rain, the streets will remain dry (due to the presence of a special chemical). But ordinarily a party that seeks to defeat a strong natural inference must bear the burden of showing that some such special circumstance exists. And no one has suggested any such special circumstance here....The majority is wrong when it describes the harm threatened plaintiffs as 'speculative.'" [Emphasis mine.]

In other words, the Alito majority misidentified the Article III requirements and set an impossibly high bar for the Amnesty plaintiffs to meet, even though ample precedent shows that standing has been granted when plaintiffs had much less evidence that they were likely to sustain injury than that provided by the ACLU in this case. 

Instead of absolute certainty, Breyer writes, "what the Constitution requires is something more akin to "reasonable probability" or "high probability." The use of some such standard is all that is necessary here to ensure the actual concrete injury that the Constitution demands."

Given that the plaintiffs in Amnesty are lawyers and human rights workers who either defended or regularly communicated with people the federal government has accused of terrorism, and that, as Justice Breyer points out, not even the government contests it has "both the motive and the capacity to listen" to their communications, there can be no doubt that there is a reasonable or high probability that the government intercepted at least some of their communications.

That is, unless the NSA is incompetent or insubordinate, and doesn't engage in electronic surveillance against people the executive branch thinks are terrorists. Is that what Justice Alito thinks?

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