Standing To Challenge FISA's Constitutionality Debated Before High Court

Standing To Challenge FISA's Constitutionality Debated Before High Court

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.).

(Transcript available. Document #24-121115-015T.)

Constitutional Challenge

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 activity.

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 standing.

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.

Unbounded Authority

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.

Substantial Risk

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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