U.S. Supreme Court rejects challenge to Foreign
Intelligence Surveillance Act (FISA) for lack of standing; reverses Second
Circuit’s finding of standing where there (a) is objectively reasonable
likelihood that communications will be intercepted in the future, and (b) are
present injuries stemming from a reasonable fear of future harmful government
conduct
In the following case, the U.S. Supreme Court rejects the
challenge brought by Amnesty International (and several other parties) to
Section 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA), 50
U.S.C. Section 1881a. Section 1881a was added by the FISA Amendments Act of
2008, and permits the Attorney General and the Director of National
Intelligence to obtain foreign intelligence information by jointly authorizing
the surveillance of individuals who are not “U.S. persons” and who are
reasonably believed to be outside the U.S. Such surveillance usually requires
advance approval by the Foreign Intelligence Surveillance Court (FISC).
Several U.S. parties, human rights organizations and attorneys
(“Respondents”), claim that they are likely to engage in communications with
international individuals who may be targeted by Section 1881a. The District
Court for the Southern District of New York found that the Respondents lacked
standing. The U.S. Court of Appeals for the Second Circuit reversed because
Respondents showed an “objectively reasonable likelihood” that their
communications will be intercepted, and that they are suffering present
injuries because of costly and burdensome measures they have to take to protect
their communications from Section 1881a surveillance.
The U.S. Supreme Court granted certiorari and now finds that
the Respondents lack Article III standing. The opinion was written by Justice
Alito, joined by Roberts, C.J., Scalia, Kennedy and Thomas.
The Court sums up its finding at the very beginning of the
opinion.
“Respondents assert that they can establish injury in fact
because there is an objectively reasonable likelihood that their communications
will be acquired under §1881a at some point in the future. But respondents’
theory of future injury is too speculative to satisfy the well‑established
requirement that threatened injury must be ‘certainly impending.’ ¼ And even if respondents
could demonstrate that the threatened injury is certainly impending, they still
would not be able to establish that this injury is fairly traceable to §1881a.
As an alternative argument, respondents contend that they are suffering present
injury because the risk of §1881a‑authorized surveillance already has forced
them to take costly and burdensome measures to protect the confidentiality of
their international communications. But respondents cannot manufacture standing
by choosing to make expenditures based on hypothetical future harm that is not certainly
impending. We therefore hold that respondents lack Article III standing.” [Slip
op. 5]
The Court then describes the framework of foreign
intelligence surveillance.
“¼Congress
created two specialized courts. In FISA, Congress authorized judges of the
Foreign Intelligence Surveillance Court (FISC) to approve electronic
surveillance for foreign intelligence purposes if there is probable cause to
believe that ‘the target of the electronic surveillance is a foreign power or
an agent of a foreign power,’ and that each of the specific ‘facilities or
places at which the electronic surveillance is directed is being used, or is
about to be used, by a foreign power or an agent of a foreign power.’
§105(a)(3), 92 Stat. 1790; see §§105(b)(1)(A), (b)(1)(B), ibid. ¼ Additionally, Congress
vested the Foreign Intelligence Surveillance Court of Review with jurisdiction
to review any denials by the FISC of applications for electronic surveillance.
§103(b), 92 Stat. 1788 ¼”
“In the wake of the September 11th attacks, President George
W. Bush authorized the National Security Agency (NSA) to conduct warrantless
wiretapping of telephone and e‑mail communications where one party to the
communication was located outside the United States and a participant in ‘the call
was reasonably believed to be a member or agent of al Qaeda or an affiliated
terrorist organization,’ ¼
In January 2007, the FISC issued orders authorizing the Government to target
international communications into or out of the United States where there was
probable cause to believe that one participant to the communication was a
member or agent of al Qaeda or an associated terrorist organization. ¼ These FISC orders
subjected any electronic surveillance that was then occurring under the NSA’s
program to the approval of the FISC. ¼
After a FISC Judge subsequently narrowed the FISC’s authorization of such
surveillance, however, the Executive asked Congress to amend FISA so that it
would provide the intelligence community with additional authority to meet the
challenges of modern technology and international terrorism. ¼”
“When Congress enacted the FISA Amendments Act of 2008 (FISA
Amendments Act), 122 Stat. 2436, it left much of FISA intact, but it
‘established a new and independent source of intelligence collection authority,
beyond that granted in traditional FISA.’ ¼
As relevant here, §702 of FISA, 50 U.S.C. §1881a (2006 ed., Supp. V), which was
enacted as part of the FISA Amendments Act, supplements pre‑existing FISA
authority by creating a new framework under which the Government may seek the
FISC’s authorization of certain foreign intelligence surveillance targeting the
communications of non‑U.S. persons located abroad. Unlike traditional FISA
surveillance, §1881a does not require the Government to demonstrate probable
cause that the target of the electronic surveillance is a foreign power or
agent of a foreign power. Compare §§1805(a)(2)(A), (a)(2)(B), with
§§1881a(d)(1), (i)(3)(A) ¼
And, unlike traditional FISA, §1881a does not require the Government to specify
the nature and location of each of the particular facilities or places at which
the electronic surveillance will occur. Compare §§1805(a)(2)(B), (c)(1) (2006
ed. and Supp. V), with §§1881a(d)(1), (g)(4), (i)(3)(A) ¼” [Slip op. 6‑8] (footnotes omitted)
The Court then elaborates on its finding that the
Respondents lack standing.
“Respondents assert that they can establish injury in fact
that is fairly traceable to §1881a because there is an objectively reasonable
likelihood that their communications with their foreign contacts will be
intercepted under §1881a at some point in the future. This argument fails. As
an initial matter, the Second Circuit’s ‘objectively reasonable likelihood’
standard is inconsistent with our requirement that ‘threatened injury must be
certainly impending to constitute injury in fact.’ ¼ Furthermore, respondents’
argument rests on their highly speculative fear that: (1) the Government will
decide to target the communications of non‑U.S. persons with whom they communicate;
(2) in doing so, the Government will choose to invoke its authority under
§1881a rather than utilizing another method of surveillance; (3) the Article
III judges who serve on the Foreign Intelligence Surveillance Court will
conclude that the Government’s proposed surveillance procedures satisfy
§1881a’s many safeguards and are consistent with the Fourth Amendment; (4) the
Government will succeed in intercepting the communications of respondents’
contacts; and (5) respondents will be parties to the particular communications
that the Government intercepts. As discussed below, respondents’ theory of
standing, which relies on a highly attenuated chain of possibilities, does not
satisfy the requirement that threatened injury must be certainly impending. ¼ Moreover, even if
respondents could demonstrate injury in fact, the second link in the above‑described
chain of contingencies—which amounts to mere speculation about whether
surveillance would be under §1881a or some other authority—shows that respondents
cannot satisfy the requirement that any injury in fact must be fairly traceable
to §1881a.”
“First, it is speculative whether the Government will
imminently target communications to which respondents are parties. Section
1881a expressly provides that respondents, who are U.S. persons, cannot be
targeted for surveillance under §1881a. See §§1881a(b)(1)‑(3) ¼ Accordingly, it is no
surprise that respondents fail to offer any evidence that their communications
have been monitored under §1881a, a failure that substantially undermines their
standing theory. ¼
Indeed, respondents do not even allege that the Government has sought the
FISC’s approval for surveillance of their communications. Accordingly,
respondents’ theory necessarily rests on their assertion that the Government
will target other individuals—namely, their foreign contacts.”
“Yet respondents have no actual knowledge of the
Government’s §1881a targeting practices. Instead, respondents merely speculate
and make assumptions about whether their communications with their foreign
contacts will be acquired under §1881a. ¼
For example, journalist Christopher Hedges states: ‘I have no choice but to
assume that any of my international communications may be subject to government
surveillance, and I have to make decisions . . . in light of that assumption.’ ¼ Similarly, attorney Scott
McKay asserts that, ‘[b]ecause of the [FISA Amendments Act], we now have to
assume that every one of our international communications may be monitored by
the government.’ ¼ ‘The
party invoking federal jurisdiction bears the burden of establishing’
standing—and, at the summary judgment stage, such a party ‘can no longer rest
on . . . ‘mere allegations,’ but must ‘set forth’ by affidavit or other
evidence ‘specific facts.’’ ¼
Respondents, however, have set forth no specific facts demonstrating that the
communications of their foreign contacts will be targeted. Moreover, because
§1881a at most authorizes—but does not mandate or direct—the surveillance that
respondents fear, respondents’ allegations are necessarily conjectural. ¼ Simply put, respondents
can only speculate as to how the Attorney General and the Director of National
Intelligence will exercise their discretion in determining which communications
to target.”
“Second, even if respondents could demonstrate that the
targeting of their foreign contacts is imminent, respondents can only speculate
as to whether the Government will seek to use §1881a‑authorized surveillance
(rather than other methods) to do so. The Government has numerous other methods
of conducting surveillance, none of which is challenged here. Even after the
enactment of the FISA Amendments Act, for example, the Government may still
conduct electronic surveillance of persons abroad under the older provisions of
FISA so long as it satisfies the applicable requirements, including a
demonstration of probable cause to believe that the person is a foreign power
or agent of a foreign power. See §1805. The Government may also obtain
information from the intelligence services of foreign nations. ¼ And, although we do not
reach the question, the Government contends that it can conduct FISA‑exempt
human and technical surveillance programs that are governed by Executive Order
12333. See Exec. Order No. 12333, §§1.4, 2.1‑2.5, 3 CFR 202, 210‑212 (1981),
reprinted as amended, note following 50 U.S.C. §401, pp. 543, 547‑548. Even if
respondents could demonstrate that their foreign contacts will imminently be
targeted—indeed, even if they could show that interception of their own
communications will imminently occur—they would still need to show that their
injury is fairly traceable to §1881a. But, because respondents can only
speculate as to whether any (asserted) interception would be under §1881a or
some other authority, they cannot satisfy the ‘fairly traceable’ requirement.”
“Third, even if respondents could show that the Government
will seek the Foreign Intelligence Surveillance Court’s authorization to
acquire the communications of respondents’ foreign contacts under §1881a,
respondents can only speculate as to whether that court will authorize such
surveillance. In the past, we have been reluctant to endorse standing theories
that require guesswork as to how independent decisionmakers will exercise their
judgment. In Whitmore, for example, the plaintiff ‘s theory of standing hinged
largely on the probability that he would obtain federal habeas relief and be
convicted upon retrial. In holding that the plaintiff lacked standing, we
explained that ‘[i]t is just not possible for a litigant to prove in advance
that the judicial system will lead to any particular result in his case.’ ¼”
“We decline to abandon our usual reluctance to endorse
standing theories that rest on speculation about the decisions of independent actors.
Section 1881a mandates that the Government must obtain the Foreign Intelligence
Surveillance Court’s approval of targeting procedures, minimization procedures,
and a governmental certification regarding proposed surveillance. §§1881a(a),
(c)(1), (i)(2), (i)(3). The Court must, for example, determine whether the
Government’s procedures are ‘reasonably designed . . . to minimize the
acquisition and retention, and prohibit the dissemination, of nonpublicly
available information concerning unconsenting United States persons.’ §1801(h);
see §§1881a(i)(2), (i)(3)(A). And, critically, the Court must also assess
whether the Government’s targeting and minimization procedures comport with the
Fourth Amendment. §1881a(i)(3)(A).”
“Fourth, even if the Government were to obtain the Foreign
Intelligence Surveillance Court’s approval to target respondents’ foreign
contacts under §1881a, it is unclear whether the Government would succeed in
acquiring the communications of respondents’ foreign contacts. And fifth, even
if the Government were to conduct surveillance of respondents’ foreign
contacts, respondents can only speculate as to whether their own communications
with their foreign contacts would be incidentally acquired.”
“In sum, respondents’ speculative chain of possibilities
does not establish that injury based on potential future surveillance is
certainly impending or is fairly traceable to §1881a.” [Slip op 13‑18]
(footnotes omitted)
The Respondents’ alternative argument receives similar
treatment.
“Respondents’ alternative argument—namely, that they can
establish standing based on the measures that they have undertaken to avoid
§1881a‑authorized surveillance—fares no better. Respondents assert that they
are suffering ongoing injuries that are fairly traceable to §1881a because the
risk of surveillance under §1881a requires them to take costly and burdensome
measures to protect the confidentiality of their communications. Respondents
claim, for instance, that the threat of surveillance sometimes compels them to
avoid certain e‑mail and phone conversations, to ‘tal[k] in generalities rather
than specifics,’ or to travel so that they can have in‑person conversations. ¼ The Second Circuit panel
concluded that, because respondents are already suffering such ongoing
injuries, the likelihood of interception under §1881a is relevant only to the
question whether respondents’ ongoing injuries are ‘fairly traceable’ to
§1881a. ... Analyzing the ‘fairly traceable’ element of standing under a
relaxed reasonableness standard, ¼
the Second Circuit then held that ‘plaintiffs have established that they
suffered present injuries in fact—economic and professional harms—stemming from
a reasonable fear of future harmful government conduct,’ ¼”
“The Second Circuit’s analysis improperly allowed
respondents to establish standing by asserting that they suffer present costs
and burdens that are based on a fear of surveillance, so long as that fear is
not ‘fanciful, paranoid, or otherwise unreasonable.’ ¼ This improperly waters down the
fundamental requirements of Article III. Respondents’ contention that they have
standing because they incurred certain costs as a reasonable reaction to a risk
of harm is unavailing—because the harm respondents seek to avoid is not
certainly impending. In other words, respondents cannot manufacture standing
merely by inflicting harm on themselves based on their fears of hypothetical
future harm that is not certainly impending. ¼
Any ongoing injuries that respondents are suffering are not fairly traceable to
§1881a.” [Slip op. 19‑20] (footnotes omitted)
In conclusion, the Respondents lack Article III standing
because they failed to show that the future injury is certainly impending.
Further, they cannot manufacture standing by incurring cost in anticipation of
non‑imminent harm. Thus, the U.S. Supreme Court reverses the Second Circuit.
Justice Breyer wrote a dissenting opinion, in which Justices
Ginsburg, Sotomayor, and Kagan join. The dissenters find that at least some of
the Respondents have standing.
“The plaintiffs’ standing depends upon the likelihood that
the Government, acting under the authority of 50 U.S.C. §1881a (2006 ed., Supp.
V), will harm them by intercepting at least some of their private, foreign,
telephone, or e‑mail conversations. In my view, this harm is not ‘speculative.’
Indeed it is as likely to take place as are most future events that commonsense
inference and ordinary knowledge of human nature tell us will happen. This
Court has often found the occurrence of similar future events sufficiently
certain to support standing. I dissent from the Court’s contrary conclusion.”
[Slip. op. 28]
Citation: Clapper v. Amnesty International USA, 568 U.S.
______, No. 11‑1025 (U.S. Supreme Court, February 26, 2013).
**** Patrick Michael Megaro is a partner at Halscott Megaro PA. His primary areas of practice are criminal defense, criminal appeals, post-conviction relief, civil appeals, and civil rights litigation. Attorney Profile at: https://solomonlawguild.com/patrick-michael-megaro; Attorney News at: https://attorneygazette.com/patrick-megaro%2C-esq#ab17a387-a757-4c0f-bc37-81f556fd15ea
