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
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
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
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.
That is just too much uncertainty for a federal court to entertain a facial
challenge to the program, according to Verrilli.
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
“[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
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.
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
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
Jaffer countered that the measures taken must be reasonable.
Kagan, however, put what she called the government's strongest argument to
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.
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
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.
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.