by Professor Anthony F. Renzo. Professor Renzo is teaching Constitutional Rights at the University of New Mexico School of Law.
The close of the latest term of the Roberts Court provided more evidence of the conservative majority’s interest in protecting corporate America and government officials from being held accountable for violating the rights of everyday Americans. This includes hostility to challenges to abusive and unconstitutional actions by the federal government in its perpetual war on terror and the massive spying network that this war has spawned.
The prime example from the latest term is the high court’s opinion in Clapper v. Amnesty International, which slammed the courthouse doors on a challenge to the broad and unchecked spying powers authorized by Congress in the 2008 Amendment to the Foreign Intelligence Surveillance Act (FISA)(50 U.S.C. § 1881a.) That Amendment, §1881a, vastly expands the government’s electronic surveillance powers by authorizing sweeping wiretaps even if the targets are not foreign agents or linked directly to terrorism. These powers include dragnet type surveillance operations of large categories of phone or email addresses that are not limited to any one individual or any particular place. While the statute limits targets to “non-U.S. persons,” the private conversations of those targets with American citizens and residents are not excluded from its scope. In any event, to the extent the statute imposes any meaningful limitations on the scope of the surveillance it authorizes, these limitations do not have the force of law because §1881a eliminates the requirement of a judicial warrant based on individualized probable cause. In effect, §1881a strips the FISA Court of its checking power, replacing independent judicial review with a certification process that effectively makes the assertions of the Attorney General and the Director of National Intelligence conclusive evidence of the legality of the Executive’s own spying operations with no meaningful judicial oversight or constitutional scrutiny.
The plaintiffs in Clapper are journalists, lawyers, and human rights activists whose work requires them to engage in telephone and email communications with non-U.S. persons located outside the United States with whom they exchange “foreign intelligence information” – basically, anything related to national defense, foreign affairs, or terrorism. The Clapper plaintiffs sued the Director of National Intelligence and other government officials seeking a declaration that §1881a is facially unconstitutional and a court order permanently enjoining the enforcement of §1881a, claiming it violated their First and Fourteenth Amendment rights. According to the plaintiffs, §1881a unconstitutionally invested the executive branch with “sweeping and virtually unlimited authority to monitor the intimate communications of … law abiding U.S. citizens and residents.”
Plaintiffs’ undisputed affidavits provided factual details that supported their assertion that the government, acting under the authority of §1881a, is likely to intercept their confidential and privileged communications with foreign sources or clients. This includes communications with relatives of Guantanamo Bay detainees; victims of extraordinary rendition; dissidents in Latin America; indigenous rights advocates in Argentina; suspected terrorists; former CIA detainees relating to U.S. counterterrorism policy; co-counsel and others in Europe concerning clients detained abroad by the U.S. military.
The substantial risk of surveillance under §1881a understandably deters the Plaintiffs from using the phone or email to communicate information that is sensitive or privileged, and leads international sources or clients to refuse to share information. To do their jobs, some plaintiffs are compelled to take countermeasures, including travel abroad for in-person meetings, a costly and often risky means of collecting sensitive information that they would have otherwise obtained by phone or email.
The government responded to plaintiffs’ suit by asking that the case be dismissed, not on the merits, but on grounds the plaintiffs’ lacked standing to sue. The Second Circuit rejected the government’s argument, finding the facts “clearly establish” that the plaintiffs are suffering harm “in anticipation of future action (enforcement of §1881a) that is reasonable likely to occur.”
Unwilling to honor well settled Article III principles, the Supreme Court reversed, minting a new and highly restrictive standing test that requires plaintiffs to show future harm to a certainty to get their day in court. The Court ruled the plaintiffs lacked Article III standing because they could not prove that government’s interception of their phone or email communications under §1881a was “certainly impending.” Since it’s clear that proving future harm to a certainty was not required to make a claim justiciable before Clapper, the Court’s opinion, written by Justice Alito, significantly heightens the Article III standing threshold, in this case all but closing the courthouse door to facial challenges to secret government spying operations and eliminating the checking power of the judicial branch in the process.
The Court has long recognized that “case or controversy” requirements of Article III are satisfied if the plaintiff can show a personal and concrete “injury in fact.” In the past, the Court has taken the realistic and common sense approach that when the prospect of future harm is likely, the plaintiff has a personal stake in the litigation that is sufficiently concrete to support standing. People conduct their lives and make decisions based on what common sense tells them is likely to happen. Uncertainty is always present in the affairs of humans, but most people reasonably feel they have a personal stake in threats that are specific and likely to materialize, even if it is not certain that the harm will occur. For these reasons, the Court has never before interpreted the case or controversy threshold for plaintiffs alleging future harm as anything more than some version of probability or likelihood. Simply, a plaintiff who shows a reasonable fear of future harm that is likely to occur satisfies the ‘injury in fact” element of the standing threshold. See, e.g., Friends of the Earth v. Laidlaw Environmental Services (TOC), Inc., (standing demonstrated by “likely” occurrence of wrongful behavior); Bryant v. Yellen, (“likely”); Buckley v. Valeo, (“reasonable probability); Clinton v. City of New York, (“sufficient likelihood of economic injury); City of Los Angeles v. Lyons, 461 U.S. 103, (“likely”).
Notwithstanding these prior rulings, the majority in Clapper ignored the “reasonable likelihood” standard and instead insisted that future harm standing satisfy a rigid test requiring the plaintiff to show that the harm is “certainly impending.” The Court has never before required a plaintiff to show future harm to a certainty. And there is good reason such a rigid and precise standard is not required: it is often impossible to satisfy even though the plaintiff is suffering concrete and particularized injuries. The Clapper case is a good example: how could the plaintiffs show wiretapping or other electronic surveillance to a certainty given the secrecy that surrounds the government’s foreign intelligence surveillance activities? Indeed, the State Secrets Act would prevent the plaintiffs or anyone else from obtaining any records or other evidence needed to prove the existence of such surveillance to a certainty. The impossibility of proving to a certainty that plaintiffs’ conversations are being intercepted, however, does not eliminate the concrete injuries to plaintiffs’ work that arise from the reasonable fear of all concerned that surveillance is likely to occur.
To escape from the extremism of its new ‘certainty’ standard, the majority relies on a false premise that if the future harm is not “certainly impending,” then it must be “speculative,” and everyone agrees that a concrete case or controversy cannot be predicated on speculation. This premise, however, is obviously false because a threatened future injury can be far removed from the category of speculation without being “certain.” As the Court has recognized in case after case before Clapper, future harm that is probabilistic, even though not certain to occur, is not speculative at all, but gives rise to a reasonable and concrete fear that is sufficient to satisfy the injury in fact requirement for Article III standing. See, e.g., Massachusetts v. EPA.
In addition to relying on a false premise as the cornerstone of its reasoning, the credibility of the majority’s opinion Clapper is also undermined by its failure to fully address Laird v. Tatum, the one prior case calling on the Court to decide a standing issue in connection with a government surveillance program. The Court runs away from Laird, and with good reason, because Laird sharply contradicts the Court’s use of ‘certainty’ as the litmus test for Article III standing in the context of a challenge to government spying. In Laird the plaintiffs brought a First Amendment challenge to a U.S. Army spying program targeting the public activities of anti-Vietnam war protesters and organizations. Unlike the privacy invading wiretapping and email interception at issue in Clapper, the surveillance in Laird was limited to the plaintiffs’ public protest activities. Nonetheless, even in the context of public spying, the Court in Laird makes clear that if the plaintiffs could show it was reasonably likely the government would misuse the information collected, the case would be justiciable and the Court would have jurisdiction to decide the constitutional question.
Since the majority opinion in Clapper is not supported by existing law on standing, the decision can only be read as establishing a new, heightened standing threshold for challenges to national security intelligence gathering. If anything, the opposite should be true: courts should be especially vigilant to prevent overreaching by government when secret dragnet spying operations invade citizens’ private and privileged communications. Such a heightened standing standard also fails to appreciate that overbroad surveillance itself deters expressive and associational activities vital to the democratic process and the publics’ right to be informed. (See, e.g., Steffel v. Thompson, holding that a reasonable fear of prosecution confers standing when First Amendment rights are threatened.)
The most far reaching structural casualty of the majority’s opinion in Clapper is its willingness to undermine the system of checks and balances. Clapper does far more damage to ordered liberty than an adverse decision on the merits by making it practically impossible for those adversely affected by unconstitutional spying operations to get the judicial branch to uphold the rule of law. While the judiciary’s power is limited by Article III to concrete cases or controversies, the powers of the political branches are also limited by the Constitution. And it is the judicial branch alone, the least dangerous of the three, which can provide a meaningful check on liberty invading actions of the political branches when those actions are taken in secret in the name of national security. The nature of our constitutional structure requires that the judicial branch not “shrink from a confrontation with the other two co-equal branches of the Federal Government” when a case is properly presented for review. Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc. As the Court (Marshall, C.J.) ruled in Cohens v. Virginia, “We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.”
The Clapper Court, in its rush to immunize the government’s perpetual war on terror from any form of meaningful scrutiny, has closed the courthouse doors when the Constitution badly needs them to swing open. By making facial challenges to secret spying programs effectively non-justiciable, the Court corrodes the Constitution’s checks and balances. The current majority need only look to the language of the Court nine years ago in Hamdi v. Rumsfeld: “[w]e have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”