Cross-posted at Forbes.com’s WLF contributor page
The Supreme Court this week ruled that a group of American lawyers lack standing to challenge the 2008 law that expanded the U.S. government’s authority to engage in electronic surveillance of overseas aliens suspected of terrorism. To hear the reaction of the ACLU and other civil liberties groups to the decision in Clapper v. Amesty International, one would think that the Supreme Court is abandoning the rule of law and abdicating its responsibility to oversee the activities of the Executive Branch. Nonsense. The Court simply denied a right to sue by individuals who concede that they have no evidence that they have been subjected to surveillance. The decision is consistent with a long line of cases that have insisted on evidence of injury before a suit can go forward, particularly when the suit implicates national security concerns.
At issue are the 2008 amendments to the Foreign Sovereign Immunities Act (FISA). The amendments permit the federal government to engage in overseas surveillance of suspected terrorists under limited circumstances. But such surveillance is permitted under the FISA Amendments (FAA) only after the government has sought and obtained the consent of the FISA Court, a special court established to address national security issues.
On the day that the FAA was enacted, several lawyers and organizations (represented by the ACLU) filed a lawsuit seeking an injunction against surveillance conducted pursuant to the FAA. They alleged that the FAA violated their First and Fourth Amendments rights as well as separation-of-powers principles. Named as defendants were several senior Obama Administration officials, including Attorney General Eric Holder (whose authorization is required before any surveillance may be undertaken under the FAA). Although the law does not permit American citizens to be targeted for surveillance, the plaintiffs expressed a fear that the government would end up overhearing some of their conversations with those foreigners who are being targeted.
Because overseas government surveillance is conducted secretly, the plaintiffs have no evidence that they have actually been subject to surveillance. They simply assert that because they speak periodically with overseas individuals whom the government is likely to label terrorists, it is reasonably probable that the government will end up eavesdropping on their conversations with such individuals.
As the Supreme Court pointed out, such claims run headlong into the “standing” limitation on federal court jurisdiction, which requires plaintiffs seeking to invoke the powers of the federal courts to demonstrate that they have suffered an injury that is directly traceable to the defendants’ alleged wrongdoing. Past decisions have created a limited exception to the injury requirement for uninjured plaintiffs who can demonstrate that their injury is “certainly impending,” but the Court found that the plaintiffs here came nowhere near establishing that their future injury (i.e., surveillance of their conversations) would be a near certainty in the absence of judicial relief. The Court explained that the standing doctrine is based to a large degree on separation-of-powers principles, which serve “to prevent the judicial process from being used to usurp the powers of the political branches” — i.e., Congress and the Executive Branch.
Just how imminent a feared future injury must be before it is sufficient to satisfy standing requirements is open to good-faith dispute. But the Court cited several factors that made any judicial involvement in this controversy particularly ill-advised. First, the Court noted the rather convoluted chain of speculation that courts would need to accept in order to find that future surveillance of the plaintiffs was “imminent.” It identified five steps in that causal chain, including several steps that are outside the control of the Executive Branch (e.g., the “imminent injury” assertion assumes that the FISA Court will approve the surveillance of communications with those suspected terrorists who happen to be in contact with the plaintiffs).
More importantly, the Court pointed out that this was a facial challenge to a law adopted by Congress and fully supported by the Executive Branch. The Court said that separation-of-powers concerns required that its standing inquiry should be “especially rigorous” when the conduct of the elected branches of government is being challenged, particularly in cases raising foreign policy questions. The Court’s “especially rigorous” standard seems wholly justified, a standard not applied when the government is not a defendant. Few would question, for example, a decision to hear the claims of a party seeking a declaration that a patent is invalid if the party introduces evidence that the patent holder is threatening to file its own infringement lawsuit; such evidence is generally deemed sufficient to create an “imminent” likelihood of future injury. But the Court rightly demands a stronger evidentiary showing when, as here, the defendant is the federal government and the national security stakes are considerably higher.
Moreover, the Court was likely looking down the road at how the suit would have proceeded had it granted the plaintiffs standing to sue. It undoubtedly realized that the suit would be unmanageable. For example, the plaintiffs alleged that any surveillance conducted under the FAA would constitute an unreasonable search in violation of the Fourth Amendment, but how can a court judge the reasonableness of government searches in the absence of any evidence from the plaintiffs regarding how the overseas surveillance program is being conducted? Furthermore, had the Court upheld the plaintiffs’ standing, the government almost surely would have shut down the lawsuit by invoking the state secrets doctrine. As the Washington Legal Foundation pointed out in an amicus brief filed in support of the Obama Administration on behalf of six former Attorneys General, merely allowing the case to proceed to trial — and thereby requiring the federal government to defend itself by revealing details of its surveillance activities — would threaten national security.
The plaintiffs are correct, of course, in pointing out that by denying standing to them, the Court has made it exceedingly difficult for any individual to establish standing to challenge the FAA. But no constitutional principle dictates that every federal statute should be subject to challenge in federal court. Even in the absence of direct judicial review of the statute, the potential for Executive Branch excesses is subject to a number of checks. For example, no surveillance can be undertaken under the FAA without the approval of the FISA Court, and Congress regularly exercises its oversight authority to ensure that the Executive Branch is properly balancing the nation’s security needs with the constitutional rights of individual citizens. There is no reason for the courts to second-guess that balance at the behest of individuals who cannot even demonstrate that they have been injured.