WASHINGTON, D.C. - (Mealey's) The U.S. Supreme Court on
Oct. 29 heard arguments on the ability of a group of respondents to challenge
the constitutionality of a law that its opponents characterize as "dragnet
surveillance" related to the power that it gives the executive branch of the
government to monitor telephone and email communication involving foreign
parties (John R. Clapper Jr., et al. v. Amnesty International USA, et al.,
No. 11-1025, U..S. Sup.).
In July 2008, a group of attorneys and human rights,
labor, legal and media organizations sued Director of National Intelligence
John M. McConnell, Director of the National Security Agency and Chief of the
Central Security Service Lt. Gen. Keith B. Alexander and Attorney General
Michael B. Mukasey, in their official capacities, in the U.S. District Court
for Southern District of New York. They sought to bring a constitutional
challenge to the FISA (Foreign Intelligence Surveillance Act of 1978)
Amendments Act of 2008 (FAA), which was signed into law the same day the
complaint was filed. James R. Clapper Jr., Keith B. Alexander and Eric H.
Holder Jr., respectively, were later substituted as defendants when they
assumed the positions held by their predecessors.
The plaintiffs, led by Amnesty International USA, alleged
that under the FAA, the executive branch of the government is permitted to
monitor international telephone and e-mail communications. It stipulates
that the government may not "intentionally target any person known at the time
of the acquisition to be located in the United States." However, the
plaintiffs claimed in their complaint that the amendment will allow the
collection of all international communications by U.S. citizens and domestic
communications if there is uncertainty about the location of one of the
communicating parties. In addition, the plaintiffs alleged that under the
amendment, the government does not have to show the Foreign Intelligence Surveillance Court,
before getting approval to conduct the surveillance, that any of the targets
are foreign agents, connected with terrorism or engaged in criminal
Judgment And Reversal
The trial court granted the government's motion for
summary judgment, finding that the plaintiffs "failed to establish standing to
challenge the constitutionality of the FAA on the basis of their fear of
surveillance." The court found that their "abstract fear that their
communications will be monitored under the FAA" was insufficient to establish
On appeal, a Second Circuit U.S. Court of Appeals panel
reversed, finding that the plaintiffs had standing to sue. In a March
2011 ruling, the panel held that "[t]he plaintiffs' uncontroverted testimony
that they fear their sensitive international electronic communications being
monitored and that they have taken costly measures to avoid being monitored -
because we deem that fear and those actions to be reasonable in the
circumstances of this case - establishes injuries in fact that we find are
causally linked to the allegedly unconstitutional FAA."
In December, the government filed a petition for a writ
of certiorari with the Supreme Court, which was granted in May.
Cascade Of Speculation
Justice Sonia Sotomayor questioned Solicitor General
Donald B. Verrilli Jr., who represented the government, as to who, under the
government's position, has standing to challenge the FAA. Verrilli stated
that standing exists when "an aggrieved person, someone who is party to a
communication, gets notice that the government intends to introduce information
in a proceeding against them." He also argued that "electronic
communication service providers can challenge authorizations under the act" and
noted the importance of "the Article III standing requirement of injury in
fact" to establish standing.
Verrilli further stressed that "[t]he government conduct
being challenged has to either have occurred or be certainly impending."
But in the present case, Verrilli said the plaintiffs had only a "cascade of
speculation" about the executive branch's "intelligence priorities and
objectives," how the branch's "officials are going to exercise their judgment to
translate those priorities into procedures" and "the independent judgment of an
Article III court assessing the lawfulness of those procedures and assessing"
Fourth Amendment compliance.
The justices and Verrilli also dialogued about whether
injury could be claimed for surveillance under the FAA when surveillance might
be proper under another existing authority. Also, the justices questioned
the possibility of how many people might be subject to the "extraordinarily
wide-reaching power" conferred by the statute, but never be aware of it and, as
such, never have standing to sue.
Justices Stephen G. Breyer and Elena Kagan referred to
the example of plaintiff Scott McKay, a lawyer who represented two purported al
Qaeda operatives who are accused of many crimes. McKay stated that the
government intercepted some 10,000 of his phone calls and 20,000 emails
involving his clients. The justices questioned whether the existence of
the FAA creates an ethics problem for such a lawyer and requires him to take
specific steps to avoid surveillance in accordance with his duties and,
therefore, whether this represents an injury in fact.
Verrilli turned the focus back to the "targeting
requirements, minimization requirements [and] certification by the . . .
highest levels of the executive" branch, as well as "independent review by an
Article III judge to ensure compliance" with the statute and the Fourth
Amendment. As such, Verrilli suggested that the FAA does not represent
"unbounded authority" as its challengers suggest.
Jameel Jaffer, representing the plaintiffs, said they
"have standing here because there is a substantial risk that their
communications will be acquired under the act and because this substantial risk
has effectively compelled them to take immediate measures to protect
information that is sensitive or privileged." Jaffer stressed that the
plaintiffs communicate "foreign intelligence information," which is "the kind
of information that the statute expressly authorizes the Government to collect,
to retain and disseminate."
Chief Justice John G. Roberts Jr. focused on the "vast
difference" between the "certainly impending" standard and the "substantial
risk" standard, stating that the former was the proper standard before the
court. Jaffer countered that the standard at issue in prior Supreme Court
constitutionality cases was a question of whether there is a substantial
risk. In the present case, Jaffer stated that there is knowledge that the
government is using the statute because it has acknowledges such use,
establishing "a certainty of Government conduct."
No Probable Cause
Jaffer stated that the plaintiffs took issue with the FAA
because it did not have the same "probable cause requirement" that FISA did,
subjecting a broader group of people to potential surveillance by the
government. As a result, Jaffer said parties such as his clients have to
take precautions, "some of which are very costly," when speaking with clients
that they think "the government might believe to be a foreign agent."
Plaintiffs, and those injured by FAA, Jaffer said,
include journalists "who report on war zones or . . . investigate human rights
abuses in places . . . where the government is likely to" "mine Americans'
international communications for foreigner intelligence information." He
noted that plaintiffs include people who represent defendants that have been
charged in "terrorism crime and foreign intelligence related crimes."
Verrilli is the solicitor general with the U.S.
Department of Justice in Washington.
Jaffer is staff attorney with the American Civil Liberties Union in New York.
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