Supreme Court Rejects FISA Surveillance Challenge

The Supreme Court, in a 5-4 decision written by Justice Alito, today ruled civil rights groups and lawyers representing Guantanamo detainees lacked standing to challenge the 1998 FISA Amendment that allowed their overseas conversations and e-mails to be intercepted. The case is Clapper v. Amnesty International, the opinion is here.

Split 5-4 on ideological lines, with conservatives backing the government and the liberal wing in the minority, the country's highest court said none of the three categories, including human rights groups Amnesty International and Human Rights Watch have legal standing to sue because they could not show they had suffered any injury.

The ACLU, which filed the lawsuit, says: [More...]

"It's a disturbing decision. The FISA Amendments Act is a sweeping surveillance statute with far-reaching implications for Americans' privacy. This ruling insulates the statute from meaningful judicial review and leaves Americans' privacy rights to the mercy of the political branches," said ACLU Deputy Legal Director Jameel Jaffer, who argued the case before the justices on October 29, when the court stayed open despite the approach of Hurricane Sandy, which shut down the rest of the federal government.

"Justice Alito's opinion for the court seems to be based on the theory that the FISA Court may one day, in some as-yet unimagined case, subject the law to constitutional review, but that day may never come. And if it does, the proceeding will take place in a court that meets in secret, doesn't ordinarily publish its decisions, and has limited authority to consider constitutional arguments. This theory is foreign to the Constitution and inconsistent with fundamental democratic values," Jaffer said.

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    What constitution? (5.00 / 6) (#1)
    by shoephone on Tue Feb 26, 2013 at 02:11:28 PM EST

    That was my reaction, too. (5.00 / 3) (#2)
    by Anne on Tue Feb 26, 2013 at 02:20:59 PM EST
    I don't know what else to say, really; this Court has made it clear that it is all about protecting power, not the people subject to it.

    I feel like the conservative Court ate the shredded constitution for breakfast.


    I've been reading more and more (5.00 / 3) (#3)
    by NYShooter on Tue Feb 26, 2013 at 02:57:42 PM EST
    about the very serious, and very real, question of whether Capitalism is, in fact, a viable, sustainable societal system.

    As a primer, Yves Smith (Naked Capitalism) has lots of Links to books, papers and articles on this subject.  

    I know you're a fan of Yves, Anne; you may want to check it out.

    Some really smart people have pretty much destroyed the idea that Capitalism has been a "good" thing for society, and, as many of us post about here , it's the primary driver Governmental corruption. However, the answer to the question, "which corrupts which, Government corrupting Capitalism, or vice versa? Hasn't been agreed to yet.


    Capitalism that includes... (none / 0) (#7)
    by Dadler on Tue Feb 26, 2013 at 06:26:51 PM EST
    ...an overly generous and overly humane floor, that provides work if necessary, would stand the greatest chance. But that floor, in a society with no ceiling on wealth, would have to be almost religiously maintained. THAT I have trouble envisioning. But when you are using fiat currency, forcing everyone to play a game, the "losers" in that game must remain secure and safe in their positions as contributing and caring citizens -- not paupers in the gutter.

    Of course (none / 0) (#9)
    by NYShooter on Tue Feb 26, 2013 at 10:03:51 PM EST
    I think the point was that today's total corruption..... every institution, designed to help the mass population prosper became prostituted into the vulgarity of the 1% today. Complete power, and all that.

    It was inevitable


    We are scr*wed (5.00 / 3) (#4)
    by shoephone on Tue Feb 26, 2013 at 03:07:03 PM EST
    And I'm afraid there's no going back. Nothing is protected anymore. It's all just words on yellowed paper.

    I'm afraid that (5.00 / 3) (#5)
    by Zorba on Tue Feb 26, 2013 at 03:12:29 PM EST
    I have to agree with you, shoephone.   :-(
    But good for the ACLU for at least trying to "fight the good fight."  I will continue to support them, as I have done for over 25 years.

    checkpoint resistors (none / 0) (#6)
    by leap on Tue Feb 26, 2013 at 05:52:14 PM EST
    Have you seen this compilation of "Fatherland Security Checkpoint" refusers? It's incredibly sad that these patriots are considered brave....but they are. I'm surprised tazers weren't deployed.

    Yeah, blame that nasty old court... (5.00 / 1) (#10)
    by Mr Natural on Tue Feb 26, 2013 at 10:07:49 PM EST
    ...Ignore the Obama DOJ behind the curtain.

    No question that Obama and his (5.00 / 2) (#12)
    by Anne on Wed Feb 27, 2013 at 06:42:55 AM EST
    DOJ are a huge part of this, but the Court is the last stop on the tour, so to speak, and it essentially rubber-stamped the government's position.

    Don't know if anyone noticed, but the ruling - that the plaintiffs did not have standing - never got to the heart of the issue, which is whether the government's surveillance is even legal.  No, the standing argument - that no one can sue because the whole program is secret and no one has actual knowledge of being harmed by it - is what is protecting the program from further examination.

    What's so disappointing - but not unexpected - is the majority's willingness to buy the standing argument even though it is clearly something out of Kafka.

    The fact that the administration is making - and winning on - the you-don't-have-standing-because-we're-keeping-it-all-secret tells me that, should there be a vacancy among the Court's conservative ranks, Obama will not be nominating anyone whose views would put the current Court's rulings at risk.

    Oh - and let's not let Congress off the hook, either; they were the ones who wrote and passed the 2008 FISA Amendments Act, that expanded the government's ability to spy on us and keep it secret while reducing oversight, accountability and transparency.


    Of course it didn't (none / 0) (#13)
    by jbindc on Wed Feb 27, 2013 at 07:19:12 AM EST
    Don't know if anyone noticed, but the ruling - that the plaintiffs did not have standing - never got to the heart of the issue, which is whether the government's surveillance is even legal.

    Because that wasn't the issue before the Court. The Court can only rule on the issue presented before it, and since nothing else was asked in the cert petition filed by the government, then that's the only question the Court can rule on.

    The question presented from the petition:

    Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1881a (Supp. II 2008)--referred to here as Section 1881a--allows the Attorney General and Director of National Intelligence to authorize jointly the "targeting of [non-United States] persons reason­
    ably believed to be located outside the United States" to acquire "foreign intelligence information," normally with the Foreign Intelligence Surveillance Court's prior approval of targeting and other procedures. 50 U.S.C. 1881a(a), (b), (g)(2) and (i)(3); cf. 50 U.S.C. 1881a(c)(2).

    Respondents are United States persons who may not be targeted for surveillance under Section 1881a. Respondents filed this action on the day that Section 1881a was enacted, seeking both a declaration that Section 1881a is unconstitutional and an injunction permanently enjoining any foreign-intelligence surveillance from being conducted under Section 1881a. 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.

    This was the only issue ruled on in lower courts, so the Supreme Court cannot now go outside of that and just start ruling on anything connected to this case.


    Hold up here, please. (5.00 / 1) (#14)
    by Anne on Wed Feb 27, 2013 at 08:43:57 AM EST
    The government's response to the original suit filed by, among others, the ACLU, challenged the plaintiff's assertion that they did, in fact, have standing to challenge the law.

    Immediately upon enactment of this new law in 2008, the ACLU filed a lawsuit alleging that the warrantless eavesdropping powers it vests violate the First and Fourth Amendments. The plaintiffs in the case are US lawyers, journalists, academic researchers and human rights activists and groups (such as Amnesty) who work on issues of terrorism, foreign policy and human rights. They argued that they have standing to challenge the constitutionality of the eavesdropping law because its very existence impedes their work in numerous ways and makes it highly likely that their communications with their clients and sources will be targeted for interception by the NSA.

    Because the Obama administration insists that it is a secret who they target for eavesdropping, neither these plaintiffs - nor anyone else - can prove with absolute certainty that they or their clients have been targeted. Taking a page (as usual) from the Bush DOJ, the Obama DOJ thus argued in response to this lawsuit that this secrecy means that nobody has "standing" to challenge the constitutionality of this law. With perfect Kafkaesque reasoning, the Obama DOJ says that (1) who we spy on is a total secret, and therefore (2) nobody has the right to obtain a judicial ruling as to whether what we are doing is legal or constitutional.


    I am aware that the Court can only rule on the issues before it; my point was that had the plaintiffs been able to prevail on the issue of standing, the First and Fourth Amendment issues raised by the law would have been able to be argued.

    Standing is the procedural element that blocked the substantive issues from being addressed; the government never had to defend the constitutionality of the law because it won on the issue of standing.

    Heads, they won - tails, we lost.  Again.


    Right (none / 0) (#16)
    by jbindc on Wed Feb 27, 2013 at 09:55:08 AM EST
    But read further in that piece:

    It is true that "standing" is an important doctrine: the requirement that a person first prove that they have been uniquely harmed by a law they want to challenge is not only necessary to fulfill the Constitution's limitation on the federal court's power (which confines their authority to actual "cases or controversies"), but it also prevents the Court from acting as a free-floating arbiter that rules on every political question. Courts can only rule on actual cases where one party has concretely harmed another.

    The plaintiffs, however, have argued that although they cannot prove they or their clients and sources have been targeted, they are already being harmed by the existence of this law. They have ample reason to fear, they say, that the communications they have with their clients or sources are targeted for interception by the government. That means that this law forces them to refrain from communicating, or to expend substantial sums to travel across the world to meet in person with them, or that these clients and sources refuse to speak to them out of fear of being eavesdropped on. These concrete harms mean, they say, that they have standing to sue the government and obtain a ruling as to whether this law is constitutional.

    In 2011, the Second Circuit Court of Appeals rejected the Obama DOJ's arguments and ruled that plaintiffs had standing to challenge the eavesdropping law given the concrete harms they are suffering from the mere existence of these eavesdropping powers. Rather than defend the constitutionality of the law, the Obama DOJ appealed this decision to the Supreme Court, and asked the court to dismiss the suit on standing grounds, without reaching the merits of the lawsuit.

    Volokh has a lot more background of the case, where they discuss that this issue was "facially" challenged, and not challenged on an "as applied" basis, and that most Fourth Amendment facial challenges are generally not successful:

    From Volokh:

    Much of the discussion in the opinions concerns the fact that this is a facial challenge, not an as-applied challenge. But there's an underlying oddity that the opinions don't mention: Facial challenges are generally frowned upon in Fourth Amendment law, and it's not clear that the law permits one to be mounted against the FISA Amendments Act at all even if plaintiffs have Article III standing. The key case is Sibron v. New York, 392 U.S. 40 (1968), in which the parties tried to litigate a facial challenge to a stop-and-identify statute. Sibron appears to say that you can't bring an facial challenge to a statute that regulates warrantless searches and seizures: Facial challenges can only be brought against statutes governing the issuing of warrants.


    Sibron explains why there is relatively little law on Article III standing to bring Fourth Amendment facial challenges to statutes. Facial challenges are generally not allowed in the first place -- at least unless the case challenges a regime of issuing warrants -- so we haven't seen many battles over Article III standing to raise challenges that can't go forward anyway. Instead, Fourth Amendment law has focused extensively on "standing" to bring as-applied challenges, which the Supreme Court in Rakas v. Illinois tells us simply folds back on the Fourth Amendment question of whether the government conduct violated the plaintiff's own reasonable expectation of privacy.

    From the Second Circuit opinion that led to this appeal (emphasis mine).

    The merits of the plaintiffs' claims are not before us. The only issue presented by this appeal is whether the plaintiffs are legally in a position to assert these claims in a federal court, not whether the claims are to any degree valid. Their merit is an issue for another court on another day.

    Bottom line is that with the Court (5.00 / 2) (#17)
    by Anne on Wed Feb 27, 2013 at 11:05:22 AM EST
    having accepted the government's argument with regard to standing, it has pretty much guaranteed that the First and Fourth Amendment issues arising from the law will never be able to be challenged/argued on the merits.

    Game, set, match.


    Do they not understand... (none / 0) (#8)
    by unitron on Tue Feb 26, 2013 at 08:24:31 PM EST
    ...that all of American society suffers harm when our government does wrong?

    Wow, Republicans for (none / 0) (#11)
    by womanwarrior on Tue Feb 26, 2013 at 10:31:15 PM EST
    limited government intrusion into our lives?

    Yeah, ... (5.00 / 2) (#15)
    by unitron on Wed Feb 27, 2013 at 09:27:13 AM EST
    ...they want to limit it to intrusion in your life, and not in theirs.

    It seems as if an understanding (none / 0) (#18)
    by KeysDan on Wed Feb 27, 2013 at 01:52:40 PM EST
    of Alito's (majority) opinion requires that we walk through the looking glass.   The plaintiffs did not have standing to sue because they cannot show they have been harmed by the surveillance law, since the surveillance is secret and no one can say for sure that their communications have been or will be monitored.

    Now, we still have a chance to find a case where the plaintiff has standing and  we can proceed to consider the constitutionality. A sure fire case should be if harm occurs to the plaintiff as evidenced by incineration by a drone.   That should count as harm, and, hence, standing.  The plaintiff  would then be well  positioned to show that the Act violated his rights and privacy. So, it is not as bad as it sounds--Alito presents a model of judicial restraint and his ruling is a narrow but not an insurmountable one.