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Monday, August 18, 2014

Can Standing Immunize Surveillance Programs From Judicial Review?

One of the abiding issues in standing doctrine is whether federal courts should care when legal violations seem to produce no viable plaintiffs. This issue has been particularly salient in debates about secret government surveillance. In recent weeks, yet another surveillance program has started to come into view, and commentators are again wondering whether anyone can challenge the program in court. What’s perhaps most interesting about this latest round of the controversy is that both sides can plausibly rely on the Court’s most recent decision on the issue.

I discussed this set of issues in a recent article entitled “Relative Standing.” Here’s the basic idea. In easy standing cases, plaintiffs assert common law injuries that have long been thought appropriate for judicial relief. Those historical practices give content to the idea of an “injury in fact.” But, in hard cases, the Court lacks a sound basis in historical practice and so the idea of an “injury in fact” lacks any stable meaning. In grappling with this problem, the Court has tended to make standing available only to plaintiffs with the strongest interest in seeking relief. This approach navigates a pair of widespread intuitions. On the one hand, standing doctrine shouldn’t make it impossible for federal courts to vindicate important principles of public law. On the other hand, standing doctrine shouldn’t give everyone an automatic ability to rush to federal court. In balancing these competing values, relative standing allows the Court to muddle through.

Relative standing made an appearance in the Court’s highly divisive 2013 decision in Clapper v. Amnesty International, USA. That case involved a suit by attorneys and journalists who interacted with people suspected of being terrorists. The plaintiffs believed that they were subject to surveillance by the government and so took precautions, such as traveling to meet clients instead of using the phone. These costly measures seemed to rest on something more than mere conjecture or speculation. As Justice Kennedy put it during the oral argument: “I think the lawyer would engage in malpractice if he talked on the telephone with some of these clients, given this statute.” Therefore, the plaintiffs' allegations seemed like a credible source of factual injury, broadly understood.

Yet a majority of the Court (Justice Kennedy included) found that the plaintiffs’ claim was too speculative to sustain standing. Near the final pages of its opinion, the Court appeared to reject relative standing as irrelevant, stating: “the assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.” However, the Court then proceeded to devote two pages of analysis to this supposedly irrelevant consideration. Of particular note, the Court suggested that people prosecuted based on potentially unlawful surveillance would be notified of that fact. And even if the defendants themselves couldn't obtain relief, their attorneys could. Sounding a distinctly relativistic note, the Court suggested that these alternative claimants had a “stronger” evidentiary basis for standing.

Clapper’s relativistic arguments were problematic. To be sure, Clapper was correct that alternative and even superior claimants were possible. But the Court failed to show that anyone who could actually sue had a greater interest in doing so than the plaintiffs. When the Court decided Clapper, the government had informed no defendants that they had been monitored pursuant to the challenged program. That left only two possibilities: either there were no defendants legally entitled to notification, or there were such defendants and the government had failed to give them notice. Either way, the “stronger” plaintiffs that the Court had imagined would not exist. In overlooking this problem, the Court let hypothetical plaintiffs defeat real ones.

We now know that, when Clapper was decided, the government was not in fact giving defendants legally required notice. Only after Solicitor General Verilli initiated an internal executive branch debate did the government belatedly supply notice to at least some defendants, thereby raising the possibility of a justiciable case. From one standpoint, these developments could be viewed as vindication for Clapper, since the Court’s holding might not ultimately prevent a ruling on the challenged surveillance program. But that appraisal would be too generous. The government chose to supply notice to defendants only after secretly failing to do so for several years. Moreover, the government could still employ the surveillance program indefinitely without ever engaging in new disclosures, so long as it does not use discovered information in ways that trigger disclosure obligations. Constitutional rights should not depend on whether the executive branch chooses to create a justiciable case.

Recently, attention has turned to another government surveillance program, apart from the one that was at issue in Clapper. This other program is conducted not under federal statutory authority, but under Executive Order 12,333. According to a recent article by Charlie Savage, it appears that the government is using this program in a way that is deliberately designed to avoid triggering notification requirements:

In practice, officials said, the government already avoids [introducing evidence obtained directly from 12333 intercepts], so as not to have to divulge the origins of the evidence in court. But the officials contend that defendants have no right to know if 12333 intercepts provided a tip from which investigators derived other evidence.

So if new plaintiffs challenge EO 12,333 intercepts, the government may not be prepared to make the same notice guarantees that appeared in Clapper.

Over at Just Security, ACLU attorney Patrick Toomey has provided a thoughtful analysis of these developments. Part of Toomey’s discussion suggests that relative standing could play a role here:

In Clapper, the Supreme Court indicated that notice to criminal defendants would ensure that there was some path to judicial review of the FISA Amendments Act. Not so, it appears, with E.O. 12,333 surveillance. Has DOJ invented, in essence, a foreign-intelligence exception to judicial review? Or does DOJ’s no-notice policy mean civil plaintiffs have standing to challenge E.O. 12,333 surveillance in the courts?

Toomey raises this point as a provocative question, which is appropriate given that Clapper purported to discount relative standing considerations, just before discussing them. What’s more, the four dissenting justices in Clapper plausibly argued that standing could be found without reference to relative considerations. So it’s quite possible that these problems will be resolved—one way or another—within the conventional standing framework.

Still, it seems fair to say that relative standing will form an important part of the debate. And it should.

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on August 18, 2014 at 04:36 PM in Constitutional thoughts | Permalink


"Of particular note, the Court suggested that people prosecuted based on potentially unlawful surveillance would be notified of that fact. "

Since we know from the Snowden files that the NSA and DEA were working hand in hand, I guess we can file this with other SCOTUS wisdom:

1) Counting all of the votes violate equal protection (for one decision only).

2) Laws passed by an overwhelming majority are suspect (only applies to liberal laws).

Posted by: Barry | Aug 18, 2014 8:28:06 PM

Between 1996 and 1998 Bin Laden had a satellite phone. He though it would be more secure, but the NSA was listening in on his conversations. Suppose during the same time the boss of a drug cartel also had a satellite phone, and the NSA heard him discuss a shipment of drugs that would be flown into the US to a certain airport at a certain time. So the DEA arrives and arrests the pilot and the people receiving the shipment and prosecutes them based on the evidence, which is a plane full of drugs. There is no plausible reason to disclose that the reason the DEA knew about the shipment is they intercepted a satellite phone call. Releasing that information warns everyone, including Bin Laden, that satellite phones are vulnerable, and we lose information that could save lives in a terror attack. If the NSA turns the intercept into an "anonymous tip" that just happens to send the DEA to the right airport at the right time, the rights of the pilot and drug dealers are not compromised because they have no opportunity to raise the silly argument that the plane full of drugs should be suppressed because the US listened in to a foreigner in a foreign country who, by definition, has no rights under the Constitution.

FISA when it was passed in 1978 excluded from its warrant requirement any NSA intercept of communications when 1) the target of the intercept was a foreign person located outside the US and 2) the intercept was accomplished outside the US using equipment outside the US. Of course, a law that says that no warrant is required to do the surveillance does not explicitly "authorize" the surveillance. That is why you need EO 12333 to say that the NSA is authorized to do what Congress and the law explicitly declined to either prohibit or restrict. However, since the exception is pretty clearly part of FISA for anyone to read, it is not like this type of surveillance or the almost inevitable executive permission to conduct it was somehow a secret.

There is a logical necessity to the FISA limitations. Some US locus is necessary to establish jurisdiction to issue a warrant. A US court cannot issue a search warrant for a house in Pakistan, because it is in Pakistan. Well a court cannot issue a communications warrant for a phone in Pakistan for the same reason. FISA creates warrants for electronic surveillance and requires them, but it only requires warrants when it is possible to issue one in the first place. It does not create warrants for purely foreign intercepts because such warrants are logically impossible, and therefore it also does not require them.

So again, does the pilot of the plane have some right to argue in court that he should go free because the NSA learned of his flight by listening in to the purely foreign conversation of someone with no ties to the US and no rights under the constitution and did so without a warrant in a context where not only could no warrant ever have been issued, but really no warrant can ever be created because no US court could ever have jurisdiction to issue it.

Posted by: Howard Gilbert | Aug 20, 2014 11:12:07 PM

Great post! I think it's valuable to place the U.S. experience (e.g. the immunization of surveillance by standing issue in Amnesty v. Clapper). Interestingly the European Court of Human Rights has addressed a number cases with similar facts as Clapper (as early as Klass and Others v. Germany in 1978). Ever since Klass, the court has found allowed individuals standing (or more technically, "admissibility") to bring claims against secret state surveillance programs, based on the mere existence of such surveillance. In Klass, the European Commission on Human Rights (which used to act as a gatekeeper to the ECtHR) stated that:

"As it is the particularity of this case that persons subject to secret supervision by the authorities are not always subsequently informed of such measures taken against them, it is impossible for the applicants to show that any of their rights have been interfered with. In these circumstances the applicants must be considered to be entitled to lodge an application even if they cannot show that they are victims."

The ECtHR subsequently held that:

“an individual may, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures were in fact applied to him.”

Without such liberal standing (or admissibility) rules, the Court feared that the privacy-protecting provisions of the Convention on Human Rights would be reduced to a "nullity." What does this say about our privacy protections (e.g. Fourth Amendment) in the U.S. today after Clapper? I've written about this issue here: http://ssrn.com/abstract=2339338.

Posted by: Bryce Newell | Aug 23, 2014 1:54:48 PM

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