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Supreme Court Hears Oral Argument on Standing to Challenge Outside the US Surveillance Authority

October 29, 2012. The Supreme Court heard oral argument in Clapper v. Amnesty International, Sup. Ct. No. 11-1025. At issue is whether the plaintiffs have standing to challenge the constitutionality of the "outside the United States" surveillance provision of the Foreign Intelligence Surveillance Act (FISA).

Introduction. Jameel Jaffer of the American Civil Liberties Union (ACLU) argued for Amnesty International (AI) and the other plaintiffs. Donald Verrilli, the Solicitor General, argued for the government surveillance agencies.

Verrilli said that the statute at issue provides "authority to the executive to conduct surveillance targeted at foreign persons located abroad for foreign intelligence purposes". However, the Justices focused on persons within the US, particularly attorneys representing clients abroad, who are also affected by this surveillance power.

Justice Elena Kagan said that the "statute greatly expands the government's surveillance power". Justice Anthony Kennedy said that it provides an "extraordinarily wide-reaching power".

However, while the complaint filed in the District Court challenges the constitutionality of the 2008 statute, the issue now before the Supreme Court is merely whether the plaintiffs have standing. Since the government has not notified the plaintiffs that that their phone conversations have been intercepted or emails copied, the government argues that they have not shown that they have suffered an injury that would confer standing to sue.

The question presented is "Whether respondents lack Article III standing to seek prospective relief because they proffered no evidence that the United States would imminently acquire their international communications using Section 1881a-authorized surveillance and did not show that an injunction prohibiting Section 1881a authorized surveillance would likely redress their purported injuries."

Donald VerrilliVerrilli (at right) argued that when the US has not criminally charged someone based upon intercepts under this statute, and has not otherwise notified someone that they have had or will have their communications intercepted under this statute, they cannot allege an injury sufficient to confer standing.

Justice Elena KaganJustice Kagan (at left) argued that for US based attorneys representing clients abroad, with the enactment of the 2008 statute, "there is a significant risk that our conversations will be surveilled, a risk that didn't exist before. Because of that significant risk, we have to take precautions ...; therefore, there is standing".

This oral argument did not cover the other ways in which the Department of Justice (DOJ) seeks to undermine the attorney client privilege.

2008 Statute. Section 702 of the FISA, which is codified at 50 U.S.C. § 1881a, contains the "outside" the US surveillance authority. This authority was enacted by the 110th Congress in 2008 by HR 6304 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008".

The 2008 statute gives the government authority to conduct surveillance related to persons "outside" the US, without individualized court approval. Surveillance of persons "outside of the United States" is a term of art that also enables surveillance of persons inside of the US who fall within the protection of the 4th Amendment.

The 2008 statute allows "the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information" without a warrant that identifies any persons, phones or accounts.

This provision does require a court order. However, it allows broad generalized orders. It allows orders that cover an entire surveillance program, without identification or description of any person, phone, or email account. In contrast, the 4th Amendment requires individualized orders. That is, it requires orders "particularly describing the place to be searched, and the persons or things to be seized".

Some oppose this provision because US citizens are located abroad, persons abroad communicate with persons inside the US, and those conducting surveillance often do not know the location of the persons they are attempting to surveil. Hence, this provision enables the government to conduct warrantless wiretaps and other surveillance of US citizens located in the US when communicating with persons whom the government believes are abroad.

These concerns have been heightened by refusals by leaders of the intelligence agencies to publicly disclose how many US persons' communications are intercepted or seized, without an individualized warrant, under the authority created by the 2008 Act.

Proceedings Below. Promptly after enactment of HR 6304, Amnesty International and other groups and individuals filed a complaint in the U.S. District Court (SDNY) against the predecessor of James Clapper, the Director of National Intelligence (DNI), and other government officials, alleging that Section 702 is unconstitutional under the 1st and 4th Amendments.

The District Court dismissed the complaint for lack of standing. It reasoned that since the plaintiffs did not establish that they were the targets of surveillance under the challenged section, they have not suffered the requisite injury in fact to confer standing to sue.

The plaintiffs appealed. On March 21, 2011, the U.S. Court of Appeals (2ndCir) issued its opinion in which it "reversed" and "vacated and remanded" the judgment of the District Court. See, story titled "2nd Circuit Reinstates Challenge to FISA Powers" in TLJ Daily E-Mail Alert No. 2,209, March 25, 2011. That opinion is reported at 638 F.3d 118.

The defendants filed a petition for writ of certiorari with the Supreme Court on February 17, 2012, which granted certiorari on May 21, 2012.

See also, government's merits brief and plaintiffs' merits brief.

Oral Argument. Justices Kagan, Sotomayor and Breyer asked questions that suggested skepticism of the government's arguments.

Ginsburg asked if, even if a challenger had standing, "Wouldn't the government then say as far as the merits of the complaint, this information is classified, these are state secrets, we can't -- we can't go forward with the litigation?" Verrelli answered, "that's a possibility".

Sotomayor expressed concern about intercept of communications of US attorneys, when their clients are located outside the US. She questioned whether these US attorneys would ever have standing, since they would not be charged.

Justice Scalia noted that the Supreme Court has previously held that there is nothing wrong with a statute that "nobody would have standing to challenge".

Verrilli argued that the court should not find standing based upon speculation or inference that a particular person's communications have been intercepted.

Justice Breyer then discussed a particular attorney who represents someone held at Guantanamo Bay. Breyer said that he "has to phone and has phoned lots of people in Saudi Arabia, in the various Arab states, and in the past the U.S. intercepted some 10,000 telephone calls and 20,000 e-mail communications involving his client. So isn't it a fair inference, almost pretty certain, maybe about as much as the storm, that if the security agencies are doing their job, they will, in fact, intercept further communications involving this particular individual, the two that he's representing?"

Justice Kennedy added that "I think the lawyer would engage in malpractice if he talked on the telephone with some of these clients, given this statute."

Verrilli responded with a causation argument. He asserted that it is legal ethics rules that cause such attorneys not use the phone, not the 2008 statute.

Jaffer argued that "Plaintiffs 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. Plaintiffs are lawyers, journalists and human rights researchers who routinely engage in communications that the Act is designed to allow the government to acquire."

The plaintiffs include lawyers, journalists and researchers. However, the Justices' questioned focused almost entirely on lawyers' communications with their clients and witnesses.

However, Justice Kagan asked about journalists who "have simply not gotten information from third parties that they otherwise would have gotten". And, she said, "But if you assume that information is the lifeblood of journalism, that their sources and their information has dried up as a result of this statute."

Congressional Bills. The statutory provision enacted in 2008 has a five year sunset. It is set to expire at the end of this year. However, there is pending legislation to extend the sunset.

On September 12, 2012, the House passed HR 5949 [LOC | WW], the "FISA Amendments Act Reauthorization Act of 2012", without amendment, by a vote of 301-118. Republicans voted 227-7. Democrats voted 74-111. See, Roll Call No. 569 and story titled "House Passes Bill to Extend FISA Outside the US Surveillance Authority" in TLJ Daily E-Mail Alert No. 2,447, September 13, 2012. President Obama publicly supported this bill. See, story titled "Obama Backs FISA Bill" in TLJ Daily E-Mail Alert No. 2,446, September 12, 2012.

The Senate has not yet passed its version of the bill, S 3276 [LOC | WW]. Sen. Ron Wyden (D-OR), who opposed the bill in the Senate Intelligence Committee (HIC), has placed a hold on the bill.

For more coverage of this legislation, see:

This case is James Clapper, et al. v. Amnesty International USA, et al., Supreme Court of the US, Sup. Ct. No. 11-1025. This is a petition for writ of certiorari to the U.S. Court of Appeals for the 2nd Circuit, App. Ct. No. 09-4112-cv, Judges Calabresis, Sack and Lynch presiding. The Court of Appeals heard an appeal from the U.S. District Court for the Southern District of New York, Judge John Koeltl presiding.

See also, Supreme Court docket, and transcript of oral argument.

(Published in TLJ Daily E-Mail Alert No. 2,469, November 5, 2012.)