A dispute over standing to challenge amendments to the Foreign Intelligence Surveillance Act could soon make its way to the U.S. Supreme Court.
Earlier this year, the U.S. Court of Appeals for the 2nd Circuit held that Amnesty International, attorneys, and other plaintiffs, who communicate with foreign contacts they believe are likely surveillance targets, have standing to challenge the amendments.
The 2nd Circuit denied rehearing en banc in September by a 6-6 vote, dividing mostly along party lines and prompting four dissenting opinions. Judge Reena Raggi, in the principal dissent, lamented that the decision had created an “unnecessary circuit split” in the federal appellate courts and she asked the Supreme Court to step in.
Amnesty International USA v. Clapper is a facial challenge to a 2008 Act amending the FISA, brought by the ACLU on behalf of various plaintiffs.
The amendments, which loosened oversight of foreign surveillance, arose in part due to 9/11, and the fact that U.S. intelligence was not able to prevent the attacks. Americans cannot be surveillance targets under the amendments, but their electronic communication with foreign targets can be intercepted more easily now.
The ACLU maintains that the amendments go too far, permitting “dragnet surveillance of Americans’ international telephone calls and e-mails en masse, without a warrant, without suspicion of any kind, and with only very limited judicial oversight.”
A federal district judge in New York dismissed the challenge for lack of standing, but a three-judge 2nd Circuit panel revived the suit, finding that the plaintiffs had alleged concrete injuries and other elements required for standing.
Six judges (four nominated by President Obama and two by President Clinton) voted to deny rehearing en banc. Another six judges (all nominees of Republican presidents, except Jose Cabranes) dissented from the denial. Because of the tie, the original panel opinion stood.
Gerard Lynch, the only judge to explain his vote to deny rehearing in an opinion, also wrote the original panel opinion, joined by two senior judges who were ineligible to vote on whether to grant rehearing.
Judge Reena Raggi, writing for all but one of the dissenters, noted that other circuits have denied standing to plaintiffs in comparable surveillance cases, including the 6th and 9th Circuits in 2007, as well as the D.C. Circuit in 1984.
The D.C. Circuit opinion, authored by then-Judge Antonin Scalia, held that even if the plaintiffs in that case were “at greater risk than the public at large” of being monitored “that would still fall far short of the ‘genuine threat’ required” for standing. Risk of surveillance is “hypothetical, conjectural, or speculative,” and “not sufficient” for standing, in the 6th and 9th Circuits, respectively.
Judge Lynch agreed with Judge Raggi that there is “some tension” in the circuits. However, the sister circuit cases are distinguishable, he said, because they deal with different programs. Also, the 2nd Circuit plaintiffs’ risk of being monitored is not hypothetical. Their foreign contacts, including Guantanamo detainees and their families, are likely surveillance targets. In addition, the 2nd Circuit plaintiffs have alleged concrete financial injuries, Judge Lynch found, including travel costs incurred to communicate with foreign contacts in person.
As to the last point, Judge Raggi dismissed such costs as “self-inflicted.” If recognized, “every mobster’s girlfriend who pays for a cab to meet with him in person rather than converse by telephone would . . . have standing,” she stated.
Whether asserted costs of Amnesty International, attorneys, and the other plaintiffs will hold sway at the Supreme Court remains to be seen.
Along with the circuit split, another factor weighing in favor of Supreme Court review of the 2nd Circuit decision is that the plaintiffs are seeking to invalidate a federal statute. Also, the case has important national security and constitutional implications.
The government is deciding whether to file a petition for certiorari, currently due December 20, according to a recent district court filing.