Analysis

Pushing a highly secret government program of global wiretapping a broad step away from ever having its constitutionality judged in an open court, the Supreme Court on Tuesday shut down a lawsuit by lawyers, journalists, and others who fear that their electronic exchanges with overseas contacts are being monitored by federal listeners.

The decision, in the case of Clapper v. Amnesty International USA (docket 11-1025), split the Court five to four, with the majority reaching back to a 1923 decision in a natural gas storage case to find a restrictive rule against allowing federal lawsuits to go forward. That rule, the dissenting Justices complained, had never before been used by the Court to block a case on the theory that it did not present a live “case or controversy.”

The ruling marked the first time that the Court had encountered a five-year-old law in which Congress, reacting to government arguments that it needed added surveillance powers to pursue the “war on terrorism,” broadly expanded federal agencies’ authority to monitor telephone, e-mail, and other communications between the U.S. and other countries, using high-volume computer-driven techniques.

Because the Court ruled that the challengers to the 2008 law did not have “standing” under the Constitution’s Article III to file their case in regular civilian court, the decision did not judge the constitutionality of the sweeping new monitoring power. The dissenters did not do so either, but they did argue that the challengers’ case should have been allowed to proceed in lower courts.

Justice Samuel A. Alito, Jr., who wrote the majority opinion, concluded that the challengers’ lawsuit was based upon a “chain of contingencies” that would have to fall into place before their communications might be at risk of eavesdropping. They had not shown, the opinion concluded, that harms to them were “certainly impending” — a rigorous standard for testing the right to sue.

The decision fit into two ongoing patterns established by the modern Court: a narrowing of the scope of the right to sue in federal court as a general proposition, and a stream of decisions insulating highly secret government war programs from judicial review in the regular federal court system.

The Alito opinion expressed a high degree of confidence that a special court, the Foreign Intelligence Surveillance Court, will guard against abuses of the new surveillance program that was freed of a number of restraints that existed under a law first passed in 1978. That surveillance court operates in total secrecy, within the Justice Department building in downtown Washington, and almost never has turned down completely government requests for “foreign intelligence” surveillance. It has sometimes modified those requests, however.

The Court majority said that the secret court is bound to enforce the Fourth Amendment’s guarantees of privacy, and indicated that the Supreme Court was relying upon it to do so.

The lawyers, some of whom represent individuals who have been or are being prosecuted on terrorism charges, joined in the challenging lawsuit along with journalists who have overseas sources in countries where terrorism is rampant, and human rights researchers who have overseas contacts, including individuals who may have been subjected to captivity in secret U.S. prisons abroad.

The Second Circuit Court had accepted the claims that at least some of those individuals or their organizations were at risk of being monitored, because of the widespread scope and the penetrating nature of the global wiretapping program, and thus ruled that their challenge should be allowed to be tried in a U.S. District Court. That is the decision the Supreme Court overturned on Tuesday, barring any trial.

The majority opinion rejected arguments by the challengers that they are almost certain to be monitored by the program in the future, but that they are already suffering harm because they have had to modify their mode of reaching their contacts, sometimes at some expense, to avoid being overheard. Both claims, the main opinion said, depend upon a variety of steps that may never occur, or at least may not occur in a way that will reach the contacts that the challengers claimed they are making.

Moreover, the opinion said, even if some of their electronic exchanges may be monitored, that may not be able to be traced back and thus blamed on the global wiretapping program. It might be the result of what foreign spy agencies do, or other monitoring sources, or it might be a result of monitoring orders approved by the FISC tribunal before the 2008 amendments — the only provisions at issue in this case — had been enacted.

Justice Alito’s opinion was supported by full by Chief Justice John G. Roberts, Jr., and by Justices Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas.

Justice Stephen G. Breyer wrote for the dissenters, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. The dissenting opinion contended that their research turned up not a single case in which the standard used by the majority — that is, that an injury must be “certainly impending” — was ever used to deny a right to sue in federal court.

This decision, in plain English:

A 1978 federal law gives the federal government authority to engage in eavesdropping to gather intelligence information from foreign nations, without targeting the communications of Americans. In 2008, in the wake of the government’s stepped-up efforts to monitor threats of terrorism, Congress broadly expanded that power, which is carried on with the approval of a secret court that meets in the Justice Department in Washington.

After that expanded version of the law went into effect, a group of lawyers with clients who have figured in terrorism cases, joined by a group of journalists who have overseas sources in countries where terrorism may be ongoing, and by human rights researchers looking for people subjected to torture in secret prison, filed a lawsuit in federal court. They contended that the much greater monitoring almost certainly being done with the expanded eavesdropping power very likely will pick up some of their conversations or electronic exchanges.

They could not prove that they actually were targets of such surveillance, because the program is surrounded in the deepest form of secrecy to protect classified information.

They argued that, because of their belief they were likely to be monitored, they had to take steps to protect their confidential contacts, so they changed the way they provide legal advice, perform journalistic chores, or carry out research, and they did so sometimes at considerable expense. That, they argued, was the kind of legal “injury” that gave them a right, under the Constitution, to challenge the constitutionality of the program.

A federal judge in New York City ruled that they had not shown that they would be targeted. A federal appeals court in New York, however, ruled that they had shown a sufficient likelihood of being overheard, so their case could go to trial.

The Supreme Court, dividing five to four, on Tuesday upheld the government’s argument that the claims of the challengers that they were likely to be targets of surveillance were based too much on speculation and on a predicted chain of events that might never occur, so they could not satisfy the constitutional requirement for being allowed to sue.

Justice Breyer’s dissenting opinion said that the Court should have used a standard of “probabilistic injuries” to determine “standing.” If that were used in this case, the dissenters said, the challengers would have met it, and their case could have gone ahead to trial.

Recommended Citation: Lyle Denniston, Opinion recap: Global wiretap challenge thwarted, SCOTUSblog (Feb. 26, 2013, 5:34 PM), https://www.scotusblog.com/2013/02/opinion-recap-global-wiretap-challenge-thwarted/