No Exemption from Judicial Review for National Security Surveillance
The Second Circuit last week rejected the Obama administration’s request to dismiss the suit challenging the 2008 FISA Amendments Act (FAA). Although the appeals court’s opinion in Amnesty v. Clapper addresses only standing, it is an important decision insofar as it rejects the administration’s effort to render national security surveillance non-justiciable and paves the way for merits review of the FAA’s constitutionality.
The plaintiffs in Clapper are attorneys, journalists, and labor, legal, media, and human rights organizations who brought suit to challenge the FAA’s new procedures for authorizing government electronic surveillance targeting non-U.S. persons outside the U.S. for purpose of collecting foreign intelligence. Plaintiffs argue that the procedures violate the Constitution, including the Fourth and First Amendments.
In particular, plaintiffs note that the FAA grants the government broad authority to conduct surveillance of U.S. citizens without making an individualized application to the Foreign Intelligence Surveillance Court identifying the particular targets or facilities to be monitored. Thus, plaintiffs argue, the FAA could authorize the surveillance of all “telephone and email communications to and from countries of foreign policy interest,” such as Russia, Egypt, or Israel, thereby sweeping in countless private conversations of American citizens. By contrast, prior to the FAA, surveillance orders could only authorize the government to monitor specific individuals or facilities, and such orders could issue only on a showing of probable cause. In addition, plaintiffs contend, the FAA lacks adequate safeguards to prevent the dissemination of information obtained through electronic surveillance.
Although the plaintiffs cannot prove that they have been the subject to electronic surveillance under the FAA, they described the professional and economic harms they have suffered. Those harms include ceasing to engage in certain conversations by phone or email to protect the confidentiality of sensitive and privileged communications (thereby compromising their ability to locate witnesses, cultivate sources, etc.), and having to bear the additional costs of traveling overseas to meet with clients, witnesses, and others. The district judge found these harms insufficient to confer standing. The appeals court disagreed.
Much of the court’s discussion turns on whether the plaintiffs had shown more than a mere “subjective chill” from the existence of FAA-based surveillance, which would be insufficient under Laird v. Tatum (the Supreme Court’s 1972 decision denying standing to challenge a U.S. Army surveillance program aimed at public activities that had the potential to create civil disorder). The plaintiffs in Clapper argued they had, explaining that their reasonable fear of government surveillance has forced them to take costly (and reasonable) measures to address the risk of surveillance. Without rehashing the court’s careful parsing of Article III standing doctrine, here are some broader lessons.
First, the court’s standing analysis suggests significant concerns with the FAA itself, and its infringement on Americans’ free speech and privacy rights. As the court said, the plaintiffs (and thus other lawyers, journalists, etc.) do reasonably fear professional and economic harm from the kind of blanket surveillance orders available under the FAA. Second, contrary to the government’s suggestion, there is no “surveillance exception” that precludes application of normal Article III standing rules. Finally, government surveillance programs are not insulated from judicial review, even when they involve national security.
Standing, as the Second Circuit observed, is founded on separation-of-powers concerns about the proper–and necessarily limited–role of courts in a democratic society. Without the constraints of standing, judges could freely oversee legislative and executive action, improperly gaining power at the expense of the democratically elected branches.
But standing doctrine, if interpreted too narrowly, can cause distortions of its own, preventing the judiciary from reviewing constitutional questions bearing on important rights of American citizens. That risk is particularly salient in the surveillance context. Since it is virtually impossible for anyone to prove he or she was subject to government surveillance under the FAA, the kind of heightened standing requirement urged by the government means, as a practical matter, that expansions of government surveillance power will not be reviewed by the courts to determine their legality. (Nor can the government be counted on to close the accountability gap by publicly disclosing the legal basis of its surveillance activities, as shown by its recent release of two heavily redacted Bush-era OLC memos in response to the ACLU’s separate FOIA litigation). The Second Circuit’s approach helps mitigate this risk by applying standing doctrine sensibly, with regard for the judiciary’s proper role in the separation of powers and the dangers of unchecked government surveillance powers.