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Supreme Court Ponders Whether Lawyers, Reporters Can Challenge U.S. Wiretapping

Monday, November 5, 2012

By Tom P. Taylor  

A group of lawyers, journalists, and human rights workers tried to convince the U.S. Supreme Court during oral argument Oct. 29 that they have standing to challenge the federal government's international electronic surveillance program (Clapper v. Amnesty Int'l USA, U.S., No. 11-1025, oral argument 10/29/12).

The plaintiffs said they had been injured by the government listening in on their conversations with clients and sources overseas, even though they could not say for sure whether such eavesdropping ever occurred.

They raised constitutional arguments against 50 U.S.C. § 1881a, part of the 2008 FISA Amendments Act, which allows the government to target persons located outside the United States for surveillance, including their communications via phone and email with people who are located in the United States.

The plaintiffs--Americans who could not be actively targeted under Section 1881a, but who feared that their communications with foreign associates would be monitored anyway--claimed that the statute violates the First and Fourth amendments, Article III of the constitution, and the principle of separation of powers.

A federal district court dismissed the plaintiffs' facial challenge for lack of standing, despite the plaintiffs' claims that they faced not only future injury due to surveillance of their communications but had already suffered injuries, including financial injury, by taking measures to avoid wiretaps and other monitoring.

The U.S. Court of Appeals for the Second Circuit disagreed and reinstated the suit, holding that the plaintiffs' assumption that the government would actually use the powers authorized by the FAA to capture their communications was reasonable and that they had indeed incurred economic costs--such as traveling to meet with clients and sources in person--to avoiding such possible surveillance (10 PVLR 486, 3/28/11).

Kagan Presses Solicitor General.

Justice Elena Kagan, from early in the argument, seemed sympathetic to the attorney-plaintiffs' claims that they had expended money and effort to avoid communicating with certain clients via phone or email when those clients might be obvious targets of the U.S. wiretapping program.

Kagan repeatedly pressed Solicitor General Donald B. Verrilli Jr.--who had a successful career as a litigator in private practice--whether he would have taken precautions to protect conversations with foreign clients he thought would almost certainly be targeted for government wiretaps due to terrorist ties or other red flags.

Verrilli did his best to avoid the question. He focused on what he called the “cascade of speculation” necessary to sustain the plaintiffs' challenge.

Not only would the intelligence priorities of the federal government have to guessed at, but an assumption would be required that procedures put in place to protect Americans from inadvertent surveillance failed and that the communications in question actually were monitored and were monitored under the authority of the challenged statute, Section 702 of the 1978 Foreign Intelligence Surveillance Act, and not some other law, Verrilli said.


 

“[W]e had cases in the past where it is clear that nobody would have standing to challenge what is brought before this Court … that just proves that under our system of separated powers, it is none of our business.”  

 

Justice Antonin Scalia

That is just too much uncertainty for a federal court to entertain a facial challenge to the program, according to Verrilli.

Impending Nature of Surveillance Parsed.

Those two categories of injury--future and present--dominated the debate at the Supreme Court.

Justice Sonia Sotomayor started off the questioning by wondering if there is anyone who would have standing to make these kinds of claims.

As Justice Ruth Bader Ginsburg explained, the attorneys and journalists involved in this case would probably never be charged with a crime, and the foreign nationals who are being targeted have no Fourth Amendment rights to assert.

“[W]e had cases in the past where it is clear that nobody would have standing to challenge what is brought before this Court … that just proves that under our system of separated powers, it is none of our business,” Justice Antonin Scalia pointed out.

Justice Anthony M. Kennedy seemed less interested in who can sue and more concerned with what standard the court should apply to future injuries.

He asked Verrilli whether the future injury--here, the possibility of future surveillance--had to be certain or simply likely.

According to Verrilli, the court's prior decisions require the exercise of government authority to be “certainly impending.”

But there are different levels of certainty, Justice Stephen G. Breyer pointed out. There “might not be a storm tomorrow,” but it seems pretty certain, he said, referring to Hurricane Sandy, which was looming over the argument and the entire Washington area.

Further, the affidavits supplied by the plaintiffs painted a picture that portrayed surveillance as highly probable, Breyer noted. In particular, the testimony of a lawyer who represented al-Qaeda members, some of whom were held at Guantanamo, apparently held sway with Breyer.

“If they aren't wiretapping the people who are described here, who are they wiretapping?” he asked.

Prophylactic Measures?

Much of the argument over the plaintiffs' alleged current injuries was covered by Jameel Jaffer, American Civil Liberties Union Foundation, New York, who argued on their behalf.

The substantial risk of having their communications acquired under the FAA has “compelled” the plaintiffs “to take immediate measures to protect information that is sensitive or privileged,” Jaffer said.

But Justice Samuel A. Alito Jr. identified what he saw as a flaw in this line of reasoning.

If a future injury--like having communications monitored--has to be near certain to create standing, a potential plaintiff could simply conjure up standing out of nowhere by taking measures to avoid monitoring, such as buying a plane ticket.

Jaffer countered that the measures taken must be reasonable.

Kagan, however, put what she called the government's strongest argument to Jaffer.

Even if your client's precautions are reasonable, it seems they should have been taking them even before the FAA was passed, in light of the powers granted to the government under FISA and other statutes that allow for foreign surveillance, she said.

Compromise or Terror Loophole?

Breyer made an effort to bring both sides to a compromise, suggesting that the government could be asked to provide some kind of declaration essentially guaranteeing that no communications from the plaintiffs would or had been monitored.

There must be some way that the government could make a showing, even in camera, to the court, proving that the plaintiffs' communications were not monitored and that they would not be monitored, Breyer suggested to Jaffer.

Jaffer agreed that such a solution would be acceptable, but it was Alito who saw a bigger problem.

“Isn't what you just suggested as a way of resolving this case rather bizarre?” Alito asked.

It would allow a terrorist to simply hire an American lawyer, ask that lawyer to file a lawsuit just like this one, and then find out whether the American government is monitoring his communications, Alito suggested.

As Verrilli later put it, such a solution is just a “mechanism” for terrorists to find out if they are under surveillance.

By Tom P. Taylor  


A transcript of the oral argument is available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-1025.pdf.

Full text of the Second Circuit's opinion is available at http://op.bna.com/pl.nsf/r?Open=dapn-8fa3zd.

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