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.
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.”
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).