Challenge to Broad Surveillance Authority

A recent 5-4 decision rejected a challenge to the 2008 amendments to the Foreign Intelligence Surveillance Act, which allows the government to intercept communications by persons outside the United States who are suspected of engaging in terrorist activity. The lawsuit was filed by attorneys and journalists who communicate with suspected terrorists around their world. Suing under the Fourth Amendment’s prohibition against unreasonable searches and seizures, they argued that the broad surveillance powers would interfere with their work by preventing them from advising clients and interviewing sources without fear that the government is listening to these conversations.

Unlike other surveillance laws, under the 2008 amendments, the government does not need probable cause of any illegal activity to intercept these communications. Nor must the government specify the nature and location of each of the places at which the electronic surveillance will occur. As a federal appeals court in Manhattan summarized the claims, “[t]he plaintiffs complain that the new procedures unlawfully permit broader collection of intelligence with less judicial oversight.” Yet, while the plaintiffs raise important constitutional issues, the courts have not addressed them on the merits. The Supreme Court in February 2013 threw out the case on a technicality that remains an obscure legal concept to most Americans: standing to sue.

The U.S. Constitution only authorizes the judiciary to hear “cases” and “controversies.” Before the courts may intervene, there must be a concrete dispute, not an abstract disagreement about a law or policy. One way to ensure that the case is properly before the court is the requirement that the plaintiff have standing to sue. Standing requires proof that the plaintiff is impacted by the challenged policy. While this may seem a dry procedural requirement, it remains fraught with political significance. A finding that the plaintiff lacks standing to sue means the disputed policy remains unchallenged for another day.

Over the years, the increasingly conservative Supreme Court has narrowed the legal standards governing standing, making it harder to challenge government policies. Broad rulings against standing literally close the courthouse door to plaintiffs who may otherwise raise serious challenges to government policy. The recent FISA case Clapper v. Amnesty International, is a good example.

The plaintiffs in Clapper include Scott McKay, a lawyer who represents Omar Al-Hussayen, who was acquitted of terrorism charges and remains a defendant in several civil cases. He also represents Khalid Sheik Mohammed before the military commissions at Guantanamo Bay. His affidavit says that prior to 2008, “the U.S. government had intercepted some 10,000 telephone calls and 20,000 email communications involving” Al-Hussayen. Another plaintiff, Joanne Mariner, is a human rights researcher who interacts with “people who were rendered by the CIA to countries in which they were tortured,” including persons associated with terrorist organizations. Progressive journalist Christopher Hedges is also a plaintiff. His affidavit summarizes the concern that his co-plaintiffs all shared: “I believe that at least some of my international communications are likely to be collected by the government under the new law. My work requires me to follow closely events in many of the world’s conflict zones.

Many of the topics, regions, and individuals I report on are of demonstrated interest to the U.S. government. For example, I report extensively on the plight of Palestinians, and in doing so I maintain contact with some individuals—including journalists, political activists, and representatives of civil society organizations—who I believe are of interest to the U.S. government. This is not to say that these individuals are suspected of criminal activity; they are not. But they have information in which the U.S. would be interested (for example, information about positions taken by various political factions in Palestine), and in the past they have shared information with me.

“My ability to gather information from sources in conflict zones is severely impaired if I cannot guarantee confidentiality. The [FISA Amendments Act] severely limits my ability to communicate by phone and e-mail with foreign sources. Many substantive areas of discussion are curtailed due to my concerns that my international communications will be intercepted by the U.S. government, and in some cases I must refrain from discussions about the location or contact information of my sources. Many of my sources communicate with me at great peril. They often criticize the organizations or groups they are affiliated with or pass on information which challenges official narratives of events. If the information they provide is handed to governments or organizations they are affiliated with, or who have control over them, they could suffer interrogation, imprisonment and even death. Fear of surveillance by the U.S. government has a profound impact on much of the work that I do as an author, journalist, and professor.”

As a result of the plaintiffs’ fear that the government will listen in on their conversations with clients and sources, they have flown abroad to speak with them in person, at great expense, rather than speak with them on the phone. As Hedges has stated, “[n]o other form of communication can be trusted. This has made my work very difficult and often requires me to travel to see those who have information. When I do communicate by e-mail or telephone, I am forced to keep the discussion away from topics that could jeopardize the person with whom I’m communicating. I have to assume that any international communication could be acquired by the U.S. government and perhaps passed on to foreign governments or foreign intelligence services. This limits my ability to gather information in the first place.”

The Ideology Divide

The question raised in the Clapper case is whether the plaintiffs are sufficiently impacted by the new FISA rules such that they have standing to challenge their constitutionality. This is where the ideological divide rises to the surface. As the Court notes in Clapper, to establish standing, “an injury must be ‘concrete, particularized, and actual or imminent.’” The dispute among the Justices is how to define “imminent.” On one hand, plaintiffs cannot challenge governmental policies on the speculative belief that they will hurt the plaintiffs in some way in the future. On the other hand, the plaintiff does not have to show a near-certainty that the policies will affect her.

Determining when governmental harm is imminent is a judgment call. The five-Justice majority in Clapper foreshadowed its ruling by noting that “we have often found a lack of standing in cases in which the Judiciary has been requested to review actions of the political branches in the fields of intelligence and foreign affairs.” This is an accurate observation. The courts are loathe to second-guess matters of war and peace and intelligence gathering.

The Supreme Court ruled in Clapper that the plaintiffs are in no position to challenge the broad surveillance rules under the revised FISA law. Writing for the majority, Justice Samuel Alito concluded that the plaintiffs have only raised speculative concerns that the new rules will affect them personally. The new law only authorizes, but does not mandate, this surveillance, so plaintiffs cannot know for sure if their phone calls will be targeted. In addition, in order to conduct the surveillance, the government needs authority from the obscure Foreign Intelligence Surveillance Court. According to Justice Alito, plaintiffs “can only speculate as to whether that court will authorize such surveillance.” And, the Court says, “it is unclear whether the Government will succeed in acquiring the communications of [plaintiffs’] foreign contacts.”

Closely-divided Supreme Court rulings are a tale of two decisions. The four dissenting Justices often see things from an entirely different angle, which means that most 5-4 rulings (and even 6-3 rulings) could easily go the other way. Constitutional law—of which the standing rule is a part—is sufficiently imprecise that two intelligent judges can interpret and apply the legal standards differently. Indeed, three experienced judges on the federal appeals court in Manhattan—including the former dean of Yale Law School—had ruled that the plaintiffs in Clapper had standing to challenge the revised FISA  rules.

Justice Stephen Breyer’s dissenting opinion for the four Justices highlighted the weak legal reasoning characterized by Justice Alito’s majority decision. Contrary to Justice Alito’s mechanical application of the standing rules, Justice Breyer notes that “there is a very high likelihood that the Government…will intercept at least some of the communications” at issue in this case. “The plaintiffs have engaged, and continue to engage, in electronic communications of a kind that the 2008 amendments, but not the prior Act, authorizes the Government to intercept.” Moreover, as the plaintiffs have ties to suspected terrorists, the government has strong motive to listen in on these communications, and if the government’s prior surveillance practices are any indication, it will continue to do so in the future. Most interestingly, while Justice Alito stated that the government must first obtain permission from the Foreign Intelligence Surveillance Court before intercepting communications, Justice Breyer noted that “the Government rarely files requests that fail to meet the statutory criteria.” Indeed, “[i]n 2011, of the 1,676 applications to the intelligence court, two were withdrawn by the Government, and the remaining 1,674 were approved, 30 with some modification.” As “certainty is not, and has never been, the touchstone of standing,” Justice Breyer concluded, the plaintiffs have raised enough allegations that the new surveillance rules will likely target their communications with clients and sources.

The political nature of Justice Alito’s opinion is confirmed by comparing it with other cases in which the Supreme Court did find standing, despite less certainty that the challenged government practice will impact the plaintiff. The dissenting Justices in Clapper noted that, in one 1988 case, landlords had standing to challenge a city law that forbade landlords from raising the rent more than eight percent if the increase would pose a severe hardship to the tenants. In that case, the landlords had not shown that they had even intended to raise the rent, to the point of creating a severe hardship, or that the tenants would challenge the rent increases. Yet, the landlords had standing to challenge the law despite a far more speculative harm than that raised in the Clapper case. As Justice Breyer noted, “courts have often found probabilistic injuries sufficient to support standing…. How could the law be otherwise? Suppose that a federal court faced a claim by homeowners that (allegedly) unlawful dam-building practices created a high risk that their homes would be flooded. Would the court deny them standing on the ground that the risk of flood was only 60, rather than 90, percent?”

A Closely-Divided Court

The five Justices in the majority in Clapper were appointed by Republican presidents. The four dissenters were appointed by Democrats. Unfortunately for progressives, the 5 to 4 decision is a way of life for the Supreme Court, particularly in highly-charged issues.

In 2012, the Court ruled for the first time that prison and jail administrators have broad leeway to strip-search incoming inmates, even if they are charged with non-violent offenses that do not suggest the prisoner will attempt to sneak contraband into the facility. That ruling was notable for the deference the 5-4 majority extended to law enforcement’s judgment about prison safety and security. As anyone on arrest for even the mildest offense can spend the night in the local jail, nothing stops the sheriff from initiating humiliating strip-searches more frequently.

Also in 2012, while it narrowly upheld the Affordable Care Act (also known as Obama-care) under the constitutional clause authorizing Congress to levy taxes, the 5-4 conservative majority held in the alternative that the law would not pass constitutional muster under the Commerce Clause, which authorizes Congress to pass laws in subject areas that have a substantial effect on interstate commerce. While the health-care crisis in the United States has a financial impact from coast to coast and the ranks of the uninsured result in higher insurance premiums for everyone else, the five conservatives on the Court pulled off a rarity: they ruled that the Commerce Clause could not sustain an act of Congress, ruling (without citation to much precedent) that the constitutional framers could not have envisioned such a broad grant of congressional authority in mandating the purchase of health insurance. That ruling will curtail congressional power in the future.

And, by conservative 5-4 majorities, the Court (in Citizens United and other cases) has regularly struck down campaign finance reforms, holding that the First Amendment right to free speech outweighs the social interest in limiting large campaign contributions that can distort public policy. The Court is chipping away at the landmark McCain-Feingold campaign finance law, inviting a mountain of corporate campaign contributions to infect the electoral process, as shown by the 2012 presidential election.

The 5-4 conservative majority reached absurd heights in 2011, when it ruled that, consistent with the First Amendment’s separation of church and state, the State of Arizona could give tax credits for contributions to school tuition organizations, which can then use the contributions to provide scholarships to students attending religious schools. In that case, the Court held that taxpayers had no standing to challenge the Arizona policy. Asserting their right to challenge the policy, the plaintiffs invoked a 1968 Supreme Court ruling that held that taxpayers could challenge a law providing government money to support “instruction in reading, arithmetic, and other subjects in religious schools, and to purchase textbooks and other instructional materials for use in such schools.” In the Arizona case, the plaintiffs argued that their challenge to the tax credits was identical to the 1968 case that prevented the government from paying for certain religious educational materials. In both instances, government money was being used, either directly or indirectly, to support religious education.

Writing for the five Justice majority, Anthony Kennedy distinguished the 1968 precedent because the Arizona policy awarded tax credits rather than direct governmental contributions, prohibiting the plaintiffs from challenging the policy as unconstitutional. This ruling is consistent with the conservative view that would lower the barriers between church and state. In dissent, Justice Kagan eviscerated Justice Kennedy’s reasoning, noting that, when it comes to government support for religious institutions, for practical purposes, there is no difference between tax credits and direct contributions. She wrote, “[c]ash grants and targeted tax breaks are means of accomplishing the same government objective—to provide financial support to select individuals or organizations. Taxpayers who oppose state aid of religion have equal reason to protest whether that aid flows from the one form of subsidy or the other. Either way, the government has financed the religious activity. So, either way, taxpayers should be able to challenge the subsidy.”

The danger of a 5-4 conservative majority is that, when the Court interprets the Constitution, Congress has no authority to override the decision short of a constitutional amendment—a rare event. These rulings remain on the books for decades and become the law of the land. Future courts may find ways to distinguish these rulings, but that requires a new membership that sees relatively little turnover, as modern Justices remain on the Court for decades. What this means for the 2008 FISA amendments is that the Clapper ruling in all likelihood denies everyone standing to challenge the law, and broad governmental authority to intercept communications will continue uninhibited.


Stephen Bergstein is a civil rights attorney in upstate New York.