Courts Won’t Be Reviewing Legality of Counterterrorism Programs Anytime Soon

By a 5-4 party line vote, SCOTUS denied standing in Amnesty v. Clapper today.

The majority opinion, written by Sam Alito, emphasizes separation of power.

The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.

[snip]

In keeping with the purpose of this doctrine, “[o]ur standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.”

[snip]

and we have often found a lack of standing in cases in which the Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs,

It uses a high standard for the imminence of harm, including what I consider a highly ironic passage, considering the Administration’s own standards for imminence.

“Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes—that the injury is certainly impending.” Id., at 565, n. 2 (internal quotation marks omitted). Thus, we have repeatedly reiterated that “threatened injury must be certainly impending to constitute injury in fact,” and that “[a]llegations of possible future injury” are not sufficient.

It even says it can’t use in camera review in this case, because doing so would establish a precedent terrorists could use to find out whether they’re being wiretapped.

It was suggested at oral argument that the Government could help resolve the standing inquiry by disclosing to a court, perhaps through an in camera proceeding, (1) whether it is intercepting respondents’ communications and (2) what targeting or minimization procedures it is using. See Tr. of Oral Arg. 13–14, 44, 56. This suggestion is puzzling. As an initial matter, it is respondents’ burden to prove their standing by pointing to specific facts, Lujan v. Defenders of Wildlife, 504 U. S. 555, 561 (1992), not the Government’s burden to disprove standing by revealing details of its surveillance priorities. Moreover, this type of hypothetical disclosure proceeding would allow a terrorist (or his attorney) to determine whether he is currently under U. S. surveillance simply by filing a lawsuit challenging the Government’s surveillance program. Even if the terrorist’s attorney were to comply with a protective order prohibiting him from sharing the Government’s disclosures with his client, the court’s postdisclosure decision about whether to dismiss the suit for lack of standing would surely signal to the terrorist whether his name was on the list of surveillance targets.

Ultimately, though, it said the plaintiff’s fears were too speculative to amount to standing.

It does so by ignoring — and indeed, misrepresenting — the details presented about what is new in this program. Here’s how Stephen Breyer, in his dissent, describes them.

The addition of §1881a in 2008 changed this prior law in three important ways. First, it eliminated the require­ ment that the Government describe to the court each specific target and identify each facility at which its sur­ veillance would be directed, thus permitting surveillance on a programmatic, not necessarily individualized, basis. §1881a(g). Second, it eliminated the requirement that a target be a “foreign power or an agent of a foreign power.” Ibid. Third, it diminished the court’s authority to insist upon, and eliminated its authority to supervise, instance-specific privacy-intrusion minimization procedures (though the Government still must use court-approved general minimization procedures). §1881a(e).

By contrast, Alito claims the new program only allows the government to target individuals (h/t Julian Sanchez who first pointed this out).

By looking at the new aspects of the program, Breyer shows that the plaintiffs’ communications could now be collected whereas before they wouldn’t have been.

First, the plaintiffs have engaged, and continue to engage, in electronic communica­ tions of a kind that the 2008 amendment, but not the prior Act, authorizes the Government to intercept. These com­ munications include discussions with family members of those detained at Guantanamo, friends and acquaintances of those persons, and investigators, experts and others with knowledge of circumstances related to terrorist activ­ ities. These persons are foreigners located outside the United States. They are not “foreign power[s]” or “agent[s] of . . . foreign power[s].” And the plaintiffs state that they exchange with these persons “foreign intelligence infor­ mation,” defined to include information that “relates to” “international terrorism” and “the national defense or the security of the United States.”

[snip]

The upshot is that (1) similarity of content, (2) strong motives, (3) prior behavior, and (4) capacity all point to a very strong likelihood that the Government will intercept at least some of the plaintiffs’ communications, including some that the 2008 amendment, §1881a, but not the pre­ 2008 Act, authorizes the Government to intercept

Much of the rest of Breyer’s dissent pertains to Alito’s inconsistency on applying standing (without saying, which I would, that Alito seems to value the standing of property owners more than owners of less tangible rights). After doing so, Breyer argues at least some of the plaintiffs have standing.

In sum, as the Court concedes, see ante, at 15–16, and n. 5, the word “certainly” in the phrase “certainly impend­ing” does not refer to absolute certainty. As our case law demonstrates, what the Constitution requires is some­thing more akin to “reasonable probability” or “high prob­ability.” The use of some such standard is all that is necessary here to ensure the actual concrete injury that the Constitution demands. The considerations set forth in Parts II and III, supra, make clear that the standard is readily met in this case

Ultimately, that’s what this decision is about: standing. But it will serve as a precedent for a number of other counterterrorism cases — including the NDAA one working through the 2nd. Which, given any more particularized suit would be thrown out under state secrets claims, means it will be almost impossible to get SCOTUS to review counterterrorism programs anytime soon.

Mind you, Alito says this ruling in no way insulates this program from judicial review, because the FISA Court conducts such a review.

Second, our holding today by no means insulates §1881a from judicial review. As described above, Congress created a comprehensive scheme in which the Foreign Intelligence Surveillance Court evaluates the Government’s certifications, targeting procedures, and minimization procedures—including assessing whether the targeting and minimization procedures comport with the Fourth Amendment. §§1881a(a), (c)(1), (i)(2), (i)(3). Any dissatisfaction that respondents may have about the Foreign Intelligence Surveillance Court’s rulings—or the congressional delineation of that court’s role—is irrelevant to our standing analysis. [my emphasis]

There are a lot of problems with that, with respect to this program, particularly given that court has no oversight over what the government does with intercepts after they’ve collected them (which gets to Breyer’s point about minimization).

But Alito is right on one point.  A big part of the problem in this case (as in the NDAA case, frankly) is that Congress wanted to create a review-free program that gutted citizens’ rights. This review-free process is by design.

And they’re about to do it again with targeted killing.

Update: ACLU’s Jameel Jaffer emphasizes the degree to which this punts our rights back to the political classes as well.

“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,

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

23 replies
  1. phred says:

    SCOTUS is a disgrace.

    When the history of this period of time is written, not a single branch of our federal government will escape excoriation for their failure to fulfill the requirements of their offices.

  2. orionATL says:

    @phred:

    your comment says it all and about as succinctly as it is possible to do.

    three branches of government that completely lost their way (and their values – if they ever had any) in the fog of war.

  3. What Constitution says:

    Bad day. But “fog of war” is way too kind. There’s no
    “War” here, not one declared by Congress acting under the Constitution.

  4. bmaz says:

    The imminence portion is hilarious. Hard to see how getting put on a kill list is not imminent enough; course you would never be able to prove it unless they tried to kill you and failed once like Awlaki – and under Alito’s view, even that may not be enough.

  5. edge says:

    “Any dissatisfaction that respondents may have about the Foreign Intelligence Surveillance Court’s rulings—or the congressional delineation of that court’s role—is irrelevant to our standing analysis.”

    How can anyone express dissatisfaction about the FISA court’s rulings when there’s no way to see those rulings? What good does it do for the court to say that this doesn’t affect appeals to FISA court rulings when there’s absolutely no way for any of those to be appealed?

  6. cregan says:

    Might have missed something, but, as I understand, none of the people suing demonstrated that they were being watched.

    If that is the case, then it would boil down to the Court ruling on something in theory. As far as I know, they have long said they won’t rule on something in theory.

  7. seedeevee says:

    I like how Alito uses “terrorist or his attorney” as some sort of baseline.

    No “accused” or such. Just “terrorist or his attorney”. What need for a court if it is already known they are a “terrorist or attorney”?

  8. What Constitution? says:

    @seedeevee: Let’s not forget that it’s a badass crime to provide “material support to terrorists” — what does that do for a “terrorist’s attorney” signing off as such?

  9. Gaianne says:

    Not to disagree with phred at 1: 04 or anything, but: Didn’t the Supreme Court just overturn Marbury v. Madison?

    I guess the Court has finished its work: It can now disband and the Judges can all go home.

    –Gaianne

  10. phred says:

    @Gaianne: No disagreement at all.

    In fact, the simplest thing for all parties concerned would be for the President to declare everything he does a secret. Then the judges can go home since no one can ever prove standing again. And Congress can go home since the only real law will be the President’s double secret probation laws. And we will all live happily ever after under the divine rule of Caesar. Well, at least, that’s how it worked out once before ; )

  11. JohnT says:

    Alito:

    It was suggested at oral argument that the Government could help resolve the standing inquiry by disclosing to a court, perhaps through an in camera proceeding, (1) whether it is intercepting respondents’ communications and (2) what targeting or minimization procedures it is using. See Tr. of Oral Arg. 13–14, 44, 56. This suggestion is puzzling. As an initial matter, it is respondents’ burden to prove their standing by pointing to specific facts

    Errm, am I missing something abou Al Haramein? Didn’t they have proof?

    The same with that lawyer from Oregon who was accused of something in Spain, and had proof his house was broken into?

  12. Jeff Kaye says:

    “the mercy of the political branches”

    Ah, but this would not be as terrible a fate if the population had political parties that really represented them, and were not the instruments of the capitalist class.

    “What though the field be lost. All is not lost.”

    Perhaps we are moving towards a time when finally the working masses in this country will realize they must have a party that speaks in its own name, and abandon the pro-military, pro-war on terror Democratic Party.

  13. P J Evans says:

    @TarheelDem:
    These are people who (at least some of them) still seem to believe that if you aren’t doing anything wrong, you don’t have anything to worry about.

    I wish I was that sure of my own actions.

  14. pdaly says:

    The President claims the US stopped torturing its captives but then the Appendix M of the US Army Field Manual preserves for the Executive the use of those actions
    The US Constitution forbids certain Executive actions, but the secretive OLC claims magical new powers for the President and hides its legal reasoning from review by the public, Congress and Judiciary thereby making the power grab real.

    Although the President claims superiority over the People’s rights outlined in the 1st, 4th, 5th, 6th, 7th, and 8th Amendments, why cannot we regroup under the 9th Amendment which protects rights of the People not enumerated in the US Constitution? Be creative. Be OLC creative but public and transparent.

  15. chris says:

    SCOTUS… who voted for these geniuses anyway? I know I didn’t.

    oh, wait… a lot of Democrats did… and in the case of Scalia, every one of them.

  16. liberalrob says:

    It’s sad, but I don’t think we can rely on the courts to get us out of this mess. The court seems reluctant to rule on anything without proof of actual injury, proof of actual injury cannot be shown without access to information indicating actual injury, and any information showing actual injury is classified a national secret by the Executive Branch. It would seem that the only alternative is for the Congress to compel the disclosure of the information by legislation.

  17. Kin I Haz Standing Now? says:

    Document shows how much data cops suck up from suspects’ cell phones

    Police can gain warrantless access to messages and past locations

    A new document uncovered by the ACLU provides insight into just how aggressive law enforcement agencies have become about obtaining the contents of seized cell phones.

    A document filed in court shows that police extracted a wealth of personal information from the device, including call records, contacts, stored text messages, photos, videos, and passwords. They also obtained “659 geolocation points, including 227 cell towers and 403 Wi-Fi networks with which the cell phone had previously connected” — a detailed record of where the device had been in previous weeks. Soghoian says law enforcement agencies can buy portable devices that extract this kind of information from smartphones in a matter of minutes.

    While acquiring such a massive volume of data without a warrant may fit the letter of the law, it certainly seems to violate the spirit of the Fourth Amendment. Until recently, no one would have had that much personal information in their pockets. Such records, if they existed at all, would have been in the suspect’s home, where the police couldn’t seize it without a warrant.

    Unfortunately, law enforcement groups have resisted efforts to enhance cell phone privacy in these situations. In 2011, the California legislature overwhelmingly passed legislation requiring a warrant to search the contents of cell phones, but Governor Jerry Brown vetoed the bill.

    http://arstechnica.com/tech-policy/2013/02/document-shows-how-much-data-cops-suck-up-from-suspects-cell-phones/

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