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Suing over surveillance secrets

This morning, the Court will hear oral arguments in Clapper v. Amnesty International. The case began as a challenge by (among others) lawyers, journalists, and human rights activists to the 2008 amendments to the Foreign Intelligence Surveillance Act (FISA), which expanded the ability of the National Security Agency (NSA) to monitor international communications by U.S. citizens.  But the merits of those amendments are not at issue today; instead, the issue is simply whether the plaintiffs in the case have “standing” – that is, the right to challenge the amendments at all.   The plaintiffs contend that they have suffered the kind of injury required for “standing” because their communications with foreign contacts are likely to be picked up by the surveillance, requiring them to spend time and money (for example, by traveling overseas to meet with their contacts in person) to avoid being monitored.    Lyle previewed the case for this blog last week; in this post, I will discuss the background of the foreign surveillance programs and the effect that the Court’s decision in Clapper is likely to have on other national security challenges.


The Foreign Intelligence Surveillance Act (FISA) was signed by President Carter in 1978 in response to investigations, led by Senator Frank Church of Idaho, into President Nixon’s use of warrantless wiretaps and other illegal surveillance to monitor his political adversaries.  The purpose of FISA was two-fold:  protect the privacy and civil liberties of U.S. citizens while at the same time creating a new mechanism, the Foreign Intelligence Surveillance Court, to issue warrants and review grievances concerning sensitive surveillance information without increasing security risks.

FISA was also a response to the Supreme Court’s 1972 decision in a case involving the criminal prosecution of members of the White Panther Party for bombing a CIA office in Michigan. Before the trial began, the government disclosed that one of the defendants had been overheard as part of a warrantless wiretap program initiated to monitor domestic organizations that had been deemed a threat to national security. In the government’s view, the president’s responsibility to protect the national security justified the warrantless surveillance of groups suspected of acts of violence. However, the Court disagreed, and it invited Congress to establish a separate scheme, distinct from the one that governs ordinary domestic law enforcement, for surveillance of foreign agents.  Although Congress did so with FISA, since then the line between privacy and national security has been anything but clear.

Related FISA litigation

In 2005, an article in The New York Times (which was later awarded the Pulitzer Prize) revealed information about the Bush administration’s post- September-11 Terrorist Surveillance Program (TSP). Although the details of the program remain classified, the government publicly acknowledged that, as part of the TSP, the administration had secretly authorized the NSA to intercept, without a warrant, telephone and e-mail communications when one party to the communication was located outside of the United States and the NSA had “a reasonable basis to conclude that one party to the communication is a member of al Qaeda or affiliated with al Qaeda.” Additionally, the NSA told Congress that privileged communications, such as those between an attorney and her client, would not be “categorically excluded” from interception.

This revelation gave rise to two main lawsuits against the government:  one by the Center for Constitutional Rights, which represents several Guantanamo detainees, and the other by the ACLU on behalf of itself and a group of journalists, scholars, and other organizations who regularly communicate with likely targets of the government’s monitoring.  As a result, the plaintiffs contend, they could not communicate via phone or e-mail with their overseas clients and at the same time maintain their professional ethical obligations to keep conversations with those clients private.  Moreover, although both sets of plaintiffs believe that they were subjects of the NSA’s warrantless surveillance program, only the government can confirm that belief – and it has declined to do so.

A federal district judge in Michigan ruled in favor of the ACLU in its case, holding that although the plaintiffs lacked any evidence that their communications had been monitored, they nonetheless had standing to sue because they could be reasonably sure they were being monitored.  Turning to the merits of the ACLU’s challenge, the judge held that the TSP violated not only FISA, but also the First and Fourth Amendments.  The government appealed to the Sixth Circuit, which reversed, holding that the plaintiffs lacked standing because they could not prove conclusively that their personal communications had been intercepted by the government; instead, that court reasoned, they had proved only that they had been harmed by the costs associated with ensuring that their communications could not be intercepted by the government.

In 2008, the Supreme Court denied review of the Sixth Circuit’s decision.  That same year, the ACLU returned to court with a different set of plaintiffs (Amnesty International and others), eventually receiving the favorable ruling from the Second Circuit that is now before the Justices.

Finding that the possibility of harm was not sufficiently concrete to confer standing, in 2011 a federal district judge in California dismissed CCR’s case against the government. The plaintiffs appealed, but the Court granted certiorari in Clapper ten days before CCR’s case was scheduled for oral argument in the Ninth Circuit. The Ninth Circuit promptly removed CCR’s case from its argument calendar and is now awaiting the Supreme Court’s decision before continuing with the case.

Although this case is the most likely of the current FISA cases to be affected by the Court’s decision in Clapper, in which CCR’s attorneys have also filed an amicus brief, there are significant factual differences in the two cases.  Specifically, although the underlying issue in Clapper is the constitutionality of the NSA’s ongoing surveillance program, which was approved by Congress, in its suit CCR contends that the TSP – which, according to the government, ended in 2007 – was illegal because it was never approved by either Congress or the courts, and it seeks a court order requiring the government to destroy anything that it retained from the warrantless TSP surveillance.  Notwithstanding these factual differences, however, a ruling in the government’s favor in Clapper would make it far more difficult for CCR – which also cannot show that its communications were actually intercepted under the TSP – to meet the standing requirement.

Shane Kadidal, who has led much of CCR’s litigation in this case, distinguishes CCR’s case, in which its attorneys and staff were the only plaintiffs, from the ACLU’s cases, which have included journalists and other individuals from outside the legal profession.  In his view, this difference makes CCR’s case a more straightforward one than Clapper. “The Supreme Court has not recognized any kind of constitutional or inherent journalists’ privilege,” Kadidal points out,  “whereas there are obviously a whole slew of legal privileges that apply to attorneys’ communications.” This matters, he explains, because the Court has previously held that a warrant to monitor communications – unlike a warrant to search a particular physical space for particular objects – risks being overly inclusive since communications can cover a much broader range, including privileged conversations with attorneys and work product discussing client’s cases with experts, all of which attorneys are duty-bound to keep confidential.

Another case in the Ninth Circuit, Al-Haramain v. Obama, was brought on behalf of the leader of an Islamic charity based in Oregon and its lawyers, who inadvertently received a classified document that – according to the plaintiffs – demonstrates that their communications were subject to warrantless surveillance. Unlike the ACLU’s cases, Al-Haramain has been litigated only as a violation of FISA, rather than as a constitutional challenge; in a further distinction from the ACLU’s cases, the plaintiffs have argued that they have standing because there was actual surveillance of their activities, rather than only a fear of surveillance.

Earlier rounds of litigation in the case focused on the state secrets doctrine, and whether it protected the classified document on which the plaintiffs sought to rely.  In 2007, the Ninth Circuit agreed with the district court that the state secrets privilege did not preclude the case from going forward, but it then held that without the classified document showing that they had been the targets of surveillance, the plaintiffs could not establish standing.  On remand, the plaintiffs introduced non-classified evidence to support their surveillance claims; the district court agreed that they had established standing, ruled in their favor, and awarded them damages and attorney’s fees.  The government appealed that decision to the Ninth Circuit, which initially held the case pending the decision in Clapper but subsequently granted a motion by the plaintiffs to allow oral argument to proceed.

However, the case was ultimately dismissed on the ground that the government had not waived sovereign immunity.

“They completely ducked the standing issue,” Jon Eisenberg, the plaintiff’s attorney in the case, said of the Ninth Circuit’s most recent opinion, “Now, our theory of standing based on actual surveillance becomes irrelevant because they didn’t even get there. We ended up never getting off sovereign immunity, which they stuck on and threw us out on, and which had been before the same court in 2007, but they ducked sovereign immunity then. So we spent five years litigating standing only to be thrown out on sovereign immunity, an issue the government had raised six years ago.” Eisenberg lamented, “It just seems that they really don’t want to get to the merits.”  Eisenberg adds that it’s hard to know exactly what’s going on with the case because the government has submitted secret evidence that the plaintiffs have never been allowed to see.  A petition for rehearing en banc is currently pending before the Ninth Circuit. Given the significant differences between the two cases, Eisenberg does not expect the case to be affected by the Court’s decision in Clapper.

While the cases discussed above have all involved allegations of targeted surveillance – that is, allegations that the government has been purposefully monitoring the plaintiffs’ communications because of the people with whom they are speaking – other cases have focused on untargeted surveillance. Untargeted surveillance, according to Electronic Frontier Foundation lawyer Cindy Cohn, who represents the plaintiffs in Jewel v. NSA, is probably the first step towards targeted surveillance.  This “dragnet” method of surveillance is, she explains, the basis for the suit:  “We have evidence that all AT&T customers who use the internet, or at least a really significant fraction, enough to be a class action, have had their communications diverted to the control of the NSA. We have the schematics, we have the descriptions of the room, we have an eyewitness, so I don’t think we have a standing problem.”  A federal district judge disagreed, however, and dismissed the case on standing grounds.  He held that the Jewel plaintiffs had a general policy dispute with the government; they had not suffered an injury. On appeal, the Ninth Circuit reversed, concluding that the plaintiffs do have standing, and it remanded the case to the district court for further proceedings.  On December 14, the district court will hear oral argument on issues relating to the state secrets privilege.

Unlike the targeted surveillance cases, however, in which the government has acknowledged that it does monitor certain communications, the government has not acknowledged that it carries out “dragnet” surveillance of all communications.  If the Court in Clapper were to announce a rule that would allow a plaintiff to sue only if the government concedes that it has monitored him, that could present difficulties for the Jewel case; a narrower rule, however, might allow the Jewel case to move forward.


The government’s position

Former Attorney General Michael Mukasey did not respond to a request for comment for this article, but he has written elsewhere about FISA and the need to bring surveillance laws into the twenty-first century. In an op-ed for the Los Angeles Times following the passage of the Protect America Act (PAA), Judge Mukasey argued that, “[i]n FISA, Congress had embedded the crucial distinction between whether targets are inside or outside our country, but did so using terms based on the technology as it existed then. However, revolutionary changes in communications technology in the intervening years have resulted in FISA applying more frequently to surveillance directed at targets overseas. The increased volume of applications for judicial orders under FISA impaired our ability to collect critical intelligence, with little if any corresponding benefit to the privacy of people in the U.S.”

Richard Samp of the Washington Legal Foundation, who filed an amicus brief in Clapper on behalf of Judge Mukasey and several other former attorney generals, and who also filed a brief urging the Ninth Circuit to dismiss Al-Haramain on the basis of the state secrets privilege, believes that the cases — like Al-Haramain and Jewel – that challenge actual surveillance have much better arguments for standing than cases – like Clapper – which challenge the amendments to FISA based on fear of surveillance, which the government has characterized as “conjectural” rather than imminent.

“Assuming you don’t know exactly what the government did, how could you possibly have a lawsuit that provides any sort of relief and provides and effective remedy?” Samp asks, “How could the plaintiff know what remedy to ask for when he doesn’t even know what’s happened?”  Samp points out that, unlike some of the other cases (like CCR v. Obama), the plaintiffs in Clapper are challenging the congressionally approved statutes, which now require judicial review before the FISA court. “It may not be the kind of review that the plaintiffs want, but it is some kind of review, and the ACLU and other groups regularly go before the FISA court and make arguments about potential violations and Fourth Amendment rights. You have federal judges on that court, who are independent, and if they don’t think that sufficient minimization steps are being taken, then can address that.”

However, the FISA court does not itself have any authority to monitor whether the government is complying with the statute’s “minimization” provisions, which require surveillance procedures to be “reasonably designed to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information.” Given the breadth of communications that can be monitored under the 2008 amendments to FISA, which removed certain requirements for detailed descriptions of the property or communications targeted by surveillance so long as the subject of the surveillance is reasonably believed to be outside the United States, some privacy advocates believe that this lack of oversight is a critical component in determining whether the program is constitutional. For Samp, however, it’s a policy question: “Congress has made the determination that those are the procedures that will be in place, and some people can disagree and think that stronger minimization requirements are appropriate, and they can bring that argument before Congress, particularly when it’s time for renewal.”

Recommended Citation: Kali Borkoski, Suing over surveillance secrets, SCOTUSblog (Oct. 29, 2012, 9:33 AM),