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Narrow review of global wiretaps (FINAL UPDATE)

FINAL UPDATE 12:01 p.m.

The Supreme Court agreed on Monday to examine, at its next Term, the federal government’s latest attempt to shield from court review its system of secret monitoring of global communications in search of terrorist threats.  In a brief order, the Justices agreed to decide whether groups and individuals fearing that their sensitive conversations will be monitored have a right to go to court to challenge that program.  The constitutionality of the program itself is not at issue.

This case will mark the Justices’ return to “war on terrorism” issues after a hiatus this Term.  They accepted the one case that had been filed by the government.  Seven other cases, all involving legal claims of detainees at the U.S. military prison at Guantanamo Bay, Cuba, were ready for action on Monday, but the Court did not deal with any of those; presumably, they will come up again shortly, perhaps at Thursday’s private Conference.

At issue in the newly granted case of Clapper, et al., v. Amnesty International, et al. (docket 11-1025) is a lawsuit filed by lawyers, journalists, and organizations representing media, labor, legal and human rights interests, seeking to challenge the constitutionality of amendments that Congress adopted four years ago to the Foreign Intelligence Surveillance Act.  The amendments significantly expanded the federal government’s authority to engage in electronic surveillance that supposedly targets only foreign nationals, but may pick up communications involving Americans, although that is not allowed intentionally.

The Second Circuit Court ruled that the challenge to the amended law’s Section 702 could go forward, as a claim against the law as written, not as it might be applied in any specific factual setting.  The en banc Second Circuit split 6-6 in refusing to reconsider that ruling, and the U.S. Solicitor General took the case on to the Supreme Court.

As the case now stands, the government’s petition argued, the test of the constitutionality of the 2008 amendments would proceed in court “in the abstract without an appropriate factual context.”  None of those suing can be monitored under the terms of the law, government lawyers said, and none has so far offered any proof that they will actually be overheard by electronic wiretaps.   Because the dispute arises in the national-security context, the petition contended, Supreme Court review of the “standing to sue” issue is urgently needed.

The fact that the lawsuit could go forward, under the Second Circuit’s ruling, does not necessarily mean that the challenge would ultimately succeed.  The merits of the constitutional issue are not now at stake.  In ruling on the “standing” issue, however, the Justices will have to explore the scope of the 2008 amendments, and what risks — or lack of risks — the program may raise of picking up the telephone calls, e-mails and other electronic exchanges of U.S. citizens or organizations.

Each of those suing asserts that, given the kind of international contacts they have with clients, news sources or other contacts, the chances are considerable that wiretapping aimed at foreign nationals will also tap into confidential exchanges.  In order to avert that prospect, the challengers have argued, they have already had to change the way they deal with their overseas contacts, sometimes at considerable expense.  That, they claimed, is their present injury, to go along with the possible future injury of government eavesdropping on confidential exchanges.

Under the Constitution’s Article III, a federal court has no authority to hear and decide a case unless someone who is suing can show a serious prospect of injury, can show that the injury is caused by the conduct being challenged, and can show that a court ruling in his favor will remedy the injury.   The government contended in its appeal to the Justices that the challengers in this case cannot satisfy any one of those minimum requirements for “standing.”

The government’s global eavesdropping program, as part of its response to the “war on terrorism,” has been repeatedly challenged in federal courts, but no such challenge has yet gone forward.  Previously, the government was able to thwart the lawsuits by relying upon the “state secrets” doctrine.   It has not yet invoked that argument in this new case.

As of now, it appears that the case is likely to be heard during the November sitting of the Court, in the Term that opens on October 1.  With a slow pace of grants of new cases for its next Term, the Court has not yet filled its November calendar.

Besides examining the Clapper case at last Thursday’s private Conference, the Justices also had been scheduled to take their first look at seven Guantanamo cases.   Among those seven are a series of challenges to the way the D.C. Circuit Court has narrowed the prospect that any detainee can gain a court order requiring a captive’s actual release from the Guantanamo prison.   The detainees’ lawyers contend that the Circuit Court has so sharply narrowed the scope of federal habeas review for detainees that any release is now remote, at best, meaning that at least some detainees will remain at Guantanamo for years without being prosecuted for any crimes.

The Court could have acted on any or all of the new Guantanamo cases on Monday, but its orders showed no action so far.

The Court, in a summary ruling without briefing or a hearing, rejected a novel new theory for challenging so-called “partisan gerrymandering” in the arrangement of seats for elected legislatures.   In a one-sentence order, the Justices (without noted dissent) upheld a ruling by a special three-judge U.S. District Court in Illinois that the challengers to the new state legislative redistricting plan had not offered a valid complaint. (The case was League of Women Voters of Illinois v. Quinn, et al., docket 11-943.)

“Partisan gerrymandering” is a concept in redistricting cases by which those who draw up new election boundaries do so in a way that attempts to ensure that candidates of a party will have a greater chance of getting elected or reelected.   The notion is that, using sophisticated census data, planners can put voters in districts according to their partisan affiliation, thus increasing (or decreasing) their chances of getting their preferred candidates elected.

It is common for legislatures to do something of this sort in order to help protect incumbents’ seats.  But it also is said to be used increasingly to assure preferred partisan outcomes even when an incumbent is not bidding for reelection.

Previously, the Supreme Court had appeared to be tempted to try to put some limits on such partisan maneuvering in the creation of new districts, but it did not go through with any such effort, because it concluded that there was no constitutional standard for determining when too much partisan influence would be too much.

The League of Women Voters of Illinois, seeking to challenge a new redistricting plan for that state’s legislature, came up with a new approach.  It was not objecting, it claimed, to the mere fact that partisan outcomes were being shaped — that is, it was not objecting that Democrats or Republicans were being assured of greater or lesser success at the polls.  Rather, it said, its concern was that, by assigning voters to different districts based upon their partisan affiliation, it was trying to influence the content of political ideas that would be laid before the voters.  In other words, it was shaping the nature of the political debate that would ensure in partisan-oriented districts, not how the votes would come out in the end.  Their challenge, they insisted, was based upon a First Amendment right to receive a variety of political messages.

The federal court rejected the challenge, concluding that the free speech rights of the League of Women Voters or their members were not being harmed by the new redistricting, since they remained free to speak out or seek out any political ideas that interested them.

The Justices’ affirmance of that ruling on Monday stands as a precedent against the League’s new theory, at least until a future point when the Justices might agree to review that approach.












Recommended Citation: Lyle Denniston, Narrow review of global wiretaps (FINAL UPDATE), SCOTUSblog (May. 21, 2012, 11:29 AM),