US Warrantless Spying Program Survives in High Court

The Supreme Court on Tuesday shut down opponents of the U.S. government’s warrantless surveillance program, finding they lack standing.

It is an admitted fact that the government claims to have the authority to monitor people who are in regular and sometimes privileged contact with individuals whom it considers “persons of interest.”

The Patriot Act, passed in 2001 and reauthorized in 2006, amended the Foreign Intelligence Surveillance Act (FISA, or Section 1881a) to create a warrantless surveillance program of U.S. citizens from libraries and Internet service providers.

Under Section 702, which President George W. Bush added with passage of the FISA Amendments Act in 2008, the government legalized that program and gave the government virtually unchecked authority to listen to the international phone calls and emails of U.S. citizens.

One provision of the act says that the government does not have to identify the target of wiretapping when seeking authorization to begin surveillance from the Foreign Intelligence Surveillance Court (FISC). This makes it impossible for targets to know if their communications are being monitored.

The FISC does not review the cases for one year after authorizing such action. During this time, the executive branch – the very branch of the government performing the surveillance – is supposed to monitor its own compliance.

Led by Amnesty International and the American Civil Liberties Union in a federal complaint, a coalition of labor, legal, media, and human rights organizations challenged the law as unconstitutional.

Initially a Manhattan federal judge sided with the government on summary judgment, saying the opponents could not prove that the government actually spied on them, and that their fear of injury under FISA was merely speculative.

When the 2nd Circuit reversed in March 2011, it said the critics did indeed have standing to fight as the entities would be more than tangentially related to the “persons of interest” who could be the target of any possible surveillance.

That 63-page decision said government surveillance poses a threat that is great enough to have caused immediate harm. The groups have gone to great lengths to avoid the chance that wiretaps could compromise their communications with clients and sources, according to the ruling.

This claim of “future injury” was too “speculative,” however, for a five-member majority of the Supreme Court on Tuesday.

“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,” Justice Samuel Alito wrote for the court. “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.”

The ruling emphasizes language in Section 1881a that expressly forecloses the surveillance U.S. persons.

“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,” Alito wrote. “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,” he continued (emphasis in original). “Instead, re­spondents merely speculate and make assumptions about whether their communications with their foreign contacts will be acquired under §1881a.”

The majority also noted the other methods available to the government to conduct such surveillance, so opponents cannot trace their injury specifically to Section 1881a.

“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,” Alito wrote. “The gov­ernment may also obtain information from the intelligence services of foreign nations. 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.”

The ruling explains further that the chain of events to establish standing also includes authorization from the FISC, success from the government in acquiring such surveillance, and the “incidental[]” acquisition then of the communications involving U.S. citizens.

As for the alleged cost that the opponents have taken to avoid surveillance, the majority found this claim “unavailing – because the harm respondents seek to avoid is not certainly impending.”

“If the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear,” Alito wrote.

Quoting Judge Reena Raggi’s dissent to the 2nd Circuit denial of a rehearing en banc, the 24-page ruling notes that the opponents could, “for the price of a plane ticket, … transform their stand­ing burden from one requiring a showing of actual or imminent … interception to one requiring a showing that their subjective fear of such interception is not fanciful, irrational, or clearly unreasonable.”

Adding that the ruling “by no means insulates §1881a from judicial review,” Alito emphasized that any dissatis­faction with FISC “rulings – or the congres­sional delineation of that court’s role – is irrelevant to our standing analysis.”

“Additionally, if the government intends to use or dis­close information obtained or derived from a §1881a ac­quisition in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition,” he wrote.

Justice Stephen Breyer authored the dissent on behalf of three colleagues.

“In my view, this harm is not ‘speculative,'” Breyer wrote. “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.”

The dissent goes on to describe various communications at issue here that would likely face government interception.

“These communications 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 activities,” Breyer wrote. “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 information,’ defined to include information that ‘relates to’ ‘international terrorism’ and ‘the national defense or the security of the United States.'”

Just as lawyers and journalists have a strong motive in speaking with their clients or sources suspected of terrorism about their alleged crimes, so too does the government have a strong motive in monitoring these communications, according to the dissent.

“The government, after all, seeks to learn as much as it can reasonably learn about suspected terrorists (such as those detained at Guantanamo), as well as about their contacts and activities, along with those of friends and family members,” Breyer wrote. “And the government is motivated to do so, not simply by the desire to help convict those whom the government believes guilty, but also by the critical, overriding need to protect America from terrorism.”

There is also the matter of the government’s past behavior.

Scott McKay, a plaintiff and attorney who represents Guantanamo detainee Khalid Sheik Mohammed and Sami Omar Al-Hussayen, who was acquitted in June 2004 on terrorism charges, told the court that prior to 2008 “the U. S. government had intercepted some 10,000 telephone calls and 20,000 email communications involving Al-Hussayen.”

Breyer expressed some contempt for the chain of events preceding surveillance described as uncertain by the majority.

“One can, of course, always imagine some special circumstance that negates a virtual likelihood, no matter how strong,” he wrote. “But the same is true about most, if not all, ordinary inferences about future events. Perhaps, despite pouring rain, the streets will remain dry (due to the presence of a special chemical). But ordinarily a party that seeks to defeat a strong natural inference must bear the burden of showing that some such special circumstance exists. And no one has suggested any such special circumstance here.

“Consequently, we need only assume that the Government is doing its job (to find out about, and combat, terrorism) in order to conclude that there is a high probability that the Government will intercept at least some electronic communication to which at least some of the plaintiffs are parties,” Breyer continued. “The majority is wrong when it describes the harm threatened plaintiffs as ‘speculative.'” (Parentheses in original.)

The dissent further emphasized that “certainty is not, and never has been, the touchstone of standing.” (Italics in original.)

“The future is inherently uncertain,” Breyer wrote. “Yet federal courts frequently entertain actions for injunctions and for declaratory relief aimed at preventing future activities that are reasonably likely or highly likely, but not absolutely certain, to take place. And that degree of certainty is all that is needed to support standing here.”

Article republished from Courthouse News