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Argument preview: Can global wiretaps be challenged?

At 10 a.m. Monday, the Supreme Court resumes public hearings, and the first that day will be one hour of oral argument on an attempt to pursue a constitutional challenge to global electronic wiretapping by the U.S. government.  Arguing for the U.S. government in the case of Clapper v. Amnesty International USA (docket 11-1025) will be U.S. Solicitor General Donald B. Verrilli, Jr.   Representing individuals and groups challenging the eavesdropping will be Jameel Jaffer of New York City, deputy legal director of the American Civil Liberties Union.


Not long after terrorists attacked the United States on September 11, 2001, the federal government began a more energetic program of monitoring international telephone calls, cable traffic, Internet exchanges, and other global communications, in hopes of discovering potential terrorist plots against America or its allies.   Some of it has been done with court approval, some apparently not.  Now, eleven years later, the public only knows that such electronic eavesdropping has occurred; it has no specific idea of what its dimensions have been, who may have been monitored, or where secret wiretaps might reach in the future.  Repeated efforts to bring some of the program out into the open, particularly through lawsuits, have often been frustrated, but they continue nevertheless.

The Supreme Court has not encouraged those lawsuits in any way, and, in fact, it has turned challengers aside before.   Indeed, its latest denial of a challenge came earlier this month.  On Monday, the federal government will ask the Court to put a stop to another such case.   The constitutionality of the global spying is not directly at issue as the new case reached the Justices; the sole issue is whether anyone has a legal right to file a lawsuit against it.  That is a question, technically, of “standing” to sue.  If no one has “standing,” then a lawsuit cannot go forward at all.

In a number of post-9/11 cases involving highly secret programs, the government has managed to scuttle them before they could go very far in court by asserting what it called the “state secrets privilege.”   That is a legal doctrine that permits the government to keep evidence out of public court trials on the theory that the evidence involves national security secrets, and their disclosure would threaten the nation.   But as that doctrine has been interpreted by the courts in recent years, it not only shuts out evidence; it actually can bring an entire lawsuit to an abrupt end on the theory that the very substance of the lawsuit is a protected secret that cannot safely be explored at all.

The government advanced that privilege, in fact, to block a lawsuit by customers of telephone and telecommunications companies.  The customers had claimed that those firms provided the technological instruments for the government’s massive wiretapping program.   Attempts by the customers to revive their lawsuit failed on October 9, when the Justices refused, without comment, to hear their case (Hepting v. AT&T Corp. (docket 11-1200)).  In that case, the customers had sought to challenge the constitutionality of the 2008 federal law that Congress passed to give the government even greater authority to secretly monitor international communications.

That same law is at the center of the case coming up for argument Monday, Clapper v. Amnesty International USA (11-1025).  That lawsuit was filed by challengers within hours after the 2008 law had taken effect.  This time, however, the government did not assert the “state secrets privilege” to stop the lawsuit.   When that case was opened in a federal court in New York City, the government did not put on any evidence at all, and it accepted as fact the claims of those who had sued about their activities.  Those suing included lawyers, journalists, and organizations working on legal issues, representing labor interests and the media, and groups working on human rights issues.

Those challengers had made two claims: first, that the global wiretapping that the government was doing under the new authority it gained in the 2008 law was so extensive and so penetrating that it was bound to have picked up some of the communications of the lawyers, journalists, and others when they were in contact with clients, or sources, or other contacts in foreign countries, and, second, out of a “reasonable fear” that they had been or would be monitored, they had altered the way they conduct their professional lives — sometimes at considerable cost — in order to protect the confidentiality of their overseas contacts.

Without conceding anything about the scope of the eavesdropping, the government argued that, even if everything the challengers claimed as fact was true, it was not enough to keep them in court.  They had not shown, it argued, that they in fact had been monitored or that they ever would be, especially since the 2008 law explicitly forbids the government from targeting Americans.  And, without some hard evidence about their communications having been intercepted, or actually threatened with interception, government lawyers said, the challengers could not show that they had suffered any legal injury that their lawsuit could remedy.

A federal district judge in New York City agreed with the government, and dismissed the case after finding that the challengers lacked “standing” to sue.   The judge labeled as an “abstract fear” the challengers’ claim that their conversations were likely to be monitored by the eavesdropping.   That kind of fear, the judge said, is not a legal injury.   If their fears were insufficient to establish injury, the judge went on, the mere fact that they spent money or took other actions in response to those fears was insufficient to fill the gap on injury.

That decision, however, was overturned by a three-judge panel of the Second Circuit Court in New York City.   On the question of whether the challengers had shown a legal injury, the Circuit Court found that the money they had spent to try to keep their communications from being overheard by federal wiretaps was clearly a factual injury that can be traced directly to the 2008 law and its scope.  Those fears, the panel said, were not “fanciful, paranoid, or otherwise unreasonable.”  The chance that they would actually be overheard, it added, was not “remote or fanciful.”   Moreover, the panel found, the challengers would probably suffer future injuries under the surveillance program, because such monitoring was a realistic likelihood.  If, at the end of this lawsuit, a court should block surveillance that could pick up the challengers’ communications, that would remedy their injury, the Circuit Court declared.

The government sought rehearing before the full en banc Circuit Court.   That requires a majority vote of the judges taking part, and the Circuit Court split six to six, thus denying further review.

Petition for Certiorari

The federal government took the case on to the Supreme Court in February of this year, appealing on behalf of the U.S. intelligence director, James R. Clapper, Jr.,  the National Security Agency’s director Gen. Keith B. Alexander, and Attorney General Eric B. Holder, Jr.   Under the 2008 law, Clapper and Holder have the authority — with approval from a secret federal court, the Foreign Intelligence Surveillance Court — to launch electronic eavesdropping for a period of up to a year that targets individuals located outside of the U.S.; the program, however, may not target “a United States person.”

The government’s petition for review raised the single question of whether the challengers lacked “standing” to sue.  It argued that they had put forth “no evidence that the United States would imminently acquire their international communications” using the authority provided by the 2008 law, and that they had not shown that a court order barring eavesdropping as authorized by the law would actually provide them with any legal remedy.   Any injuries that the challengers are claiming based upon money they have spent or changes they have made in their professional activities are, at most, “self-imposed” injuries, the government said.

Stressing that the individuals and organizations that had sued cannot be targeted under the surveillance program, the petition added that the challengers have not shown that they will be monitored even “incidentally.” Thus, the government said, they cannot prove any injury sufficient to give them “standing.”  Other federal courts, the petition added, have refused to permit challenges to other surveillance programs to go forward in court.   And, it said, the Circuit Court decision in this case “requires that the constitutionality of an Act of Congress authorizing important foreign-intelligence gathering activity directed abroad at third parties be litigated in the abstract without an appropriate factual context.”  Vital national security issues are at stake, it added.

The government petition was supported by three former U.S. attorneys general, William P. Barr, Edwin Meese III, and Richard Thornburgh, and by a conservative legal advocacy group, the Washington Legal Foundation.

Replying, the challengers argued that they had already suffered “concrete and identifiable injuries” — both professional and economic — in order to protect the confidentiality of their communications with contacts overseas.  They even have had to abandon altogether some “particularly sensitive communications,” the opposition brief asserted.   And those injuries, the brief added, are “fairly traceable” to the eavesdropping authority that Congress has conferred on the government.  In fact, it noted, the government has released publicly several hundred pages of documents under the Freedom of Information Act that confirm that the government is actually using the broad authority given by the 2008 law.

Briefs on the Merits

In keeping with the tight focus of this case, on the sole issue of Article III “standing,” the federal government’s brief on the merits makes no attempt to defend the constitutionality of the global surveillance program, and it refrains from using extensive national security rhetoric to justify what may be going on in the surveillance.  It does, in passing, seek to minimize the scope of new eavesdropping authority that Congress gave to the Executive Branch in 2008, describing that measure as having added only “new, supplemental procedures.”

On the “standing” issue, the government’s points are essentially the same as in its petition for review: the claim of “future injury” in unsupported by credible facts that show that such injury is “imminent and not conjectural,” the assertions about potential injury are keyed solely to the challengers’ “beliefs” rather than to demonstrated facts, the courts would be taking part only in “the rarefied atmosphere of a debating society” if they were to proceed with this case based on such “beliefs,” all of the spending or modification of behavior that the challengers claim have been merely “self-inflicted.” and any victory these challengers obtained in court would not keep the government from monitoring the foreign contacts because it has other means of doing so and other governments might also do so.

Once again, former U.S. attorneys general Barr, Meese, and Thornburgh filed an amicus brief on the merits in support of the government, but they also were joined this time by two others who have held that office, Benjamin R. Civiletti and Michael R. Mukasey.  The Washington Legal Foundation, which prepared that brief, also joins it as an amicus.  The former AGs asserted that they were concerned about the Circuit Court ruling, suggesting that it relaxes “standing” doctrine “to such a degree that a plaintiff who disagrees with a federal law or policy can inflict upon himself some harm in order to secure a federal forum to litigate his grievance.”

The merits brief of the challengers, not surprisingly, undertakes in its factual recital to demonstrate what it calls the “dragnet” character of the global eavesdropping program that followed the 9/11 terrorist attacks, arguing that the 2008 law “authorized the acquisition without individualized suspicion of a wide swath of communications, including Americans’ international communications, from telecommunications switches and other facilities inside the United States.”  Indeed, the brief said, “the dragnet surveillance of Americans’ international communications was one of the purposes of the Act.”

While that line of argument goes in part to the merits of their constitutional challenges, it also is included as a tactical measure to buttress the notion that the authorized surveillance under that statute now sweeps the globe, and thus almost predictably would monitor Americans’ communications with their foreign contacts.   And the introductory factual recital also provides extensive detail on how the challengers have modified their professional activities in hopes of escaping monitoring — to further support the idea that they have, indeed, suffered an immediate harmful consequence.

The discussion of the claimed injuries parallels closely the arguments made in the brief in opposition to the government petition.   The challengers first press the economic and professional harms they claim, arguing that they are, in fact, reasonable in the face of the sweep of the surveillance now being undertaken under the 2008 law.  And, second, they argue that the sweep of the surveillance provides “an objectively reasonable likelihood that their communications” will be monitored under the statute.  Article III, the brief asserted, does not require the certainty that the government has argued the challengers must provide.

Among ten amici filings on the challengers’ side, there is one from former members and staff of the Senate committee that fashioned the original foreign intelligence surveillance law in 1978, in response to demonstrated abuses uncovered by the so-called “Church Committee Report,” and there are briefs from lawyers’ groups defending the attorney-challengers’ right to pursue their professional obligations without fear of monitoring, from a journalists’ group defending reporters’ similar rights, and from privacy advocates and constitutional scholars.


It is difficult to argue that the Court granted review in this case for any reason other than to reverse the Circuit Court’s finding of “standing” for the challengers.  Even leaving aside the Court’s studied refusal to hear cases that have sought to challenge the government’s post-9/11 surveillance activities, this is a Court with a majority that does not have an expansive view of Article III “standing” and a majority that has worked rather consistently to make it more difficult to bring cases in the federal courts as a general proposition, whether or not they involved tests of “war on terrorism” issues.

The government’s assault on the evidence the challengers have offered on their injury and their fears is quite aggressive, and, if taken at face value by the Court, will make it easy to conclude that Article III has not been satisfied.  The professional forfeitures that the attorneys, journalists, and other challengers say they have made seem real, indeed, but they probably will not carry the challengers very far if the Court majority is not prepared to indulge in second-guessing the sweep of the surveillance program itself.   With so little publicly known about just how far that program does go, the impact of it — even the potential impact — on these challengers is difficult to discern.  The challengers’ recital of the history of such surveillance is rather scary, but it seems doubtful that that is enough to convince the Court that these individuals and groups will actually be monitored.

This case, made simple:

The Constitution limits the authority of federal courts to deciding actual “cases or controversies.”   That has come to mean that a federal court can decide only a legal dispute that has real-world meaning to parties who have genuine interests at stake.   One way by which federal courts assure themselves that a case can be decided as an actual controversy is to judge whether the party that filed the lawsuit is going to suffer some impact that amounts to a legal harm, or “injury,” that the injury can be traced directly to something the other side has actually done, and that a victory in the case for the party that sued will provide an actual injury.

In this case, the government has asked the Supreme Court to rule that individuals and organizations that filed a lawsuit to contest the constitutionality of a broad program of secret government eavesdropping on international telephone calls, cable traffic, and Internet exchanges have not offered proof that their communications actually have been or will be monitored, have not offered proof that the government eavesdropping itself caused them any harm, and have not shown that even if they won on their claim that the surveillance is unconstitutional they would then get an actual remedy.   Thus, the government argued, they had no right to file their lawsuit in the first place.

The challengers counter that the program of surveillance sweeps so widely that their communications with foreign contacts are bound to be picked up by the global wiretapping, that they have already spent time and money and made other efforts to try to avoid being monitored, and that those are real harms to them that would be remedied if their constitutional challenge is allowed to move ahead and if they win it.















Recommended Citation: Lyle Denniston, Argument preview: Can global wiretaps be challenged?, SCOTUSblog (Oct. 26, 2012, 12:11 AM),