supreme court

Supreme Court in Washington D.C.

In a lawsuit against a warrantless wiretapping law and filed on behalf of human rights attorneys, journalists and human rights and media organizations, the Supreme Court ruled the plaintiffs bringing the suit do not have standing for the lawsuit.

The American Civil Liberties Union (ACLU) brought the case alleging the FISA Amendments Act of 2008 made it legally permissible for the government to conduct dragnet surveillance of Americans’ international communications, even if there was no probable cause or individualized suspicion for such surveillance.

In March 2011, the US Court of Appeals for the Second Circuit ruled that the plaintiffs did have standing to challenge. It did not buy the government’s position, which according to the ACLU was that plaintiffs should not be able to sue without showing they have been monitored under the FAA but the government should not have to disclose information to plaintiffs on whether they have been monitored. The Obama administration appealed and the challenge went to the Supreme Court.

As Hurricane Sandy was about to hit Washington, DC, the Supreme Court went ahead with oral argument to determine whether the plaintiffs had the “standing” to challenge the legality of the NSA’s surveillance operations.

It was a 5-4 ruling. Chief Justice John Roberts, Justice Samuel Alito, Justice Clarence Thomas, Justice Anthony Kennedy and Justice Antonin Scalia ruled in favor of the government while Justice Stephen Breyer, Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor and Justice Elena Kagan joined Breyer in dissenting against the ruling.

The ruling concluded:
We hold that respondents lack Article III standing because they cannot demonstrate that the future injury they purportedly fear is certainly impending and because they cannot manufacture standing by incurring costs in anticipation of non-imminent harm. We therefore reverse the judgment of the Second Circuit and remand the case for further proceedings consistent with this opinion.

Alito, who delivered the opinion, argued, “It is speculative whether the Government will imminently target communications to which respondents are parties.” A section of Foreign Intelligence Surveillance Act – 1881a – provides that “respondents, who are US persons, cannot be targeted for surveillance.” He noted the plaintiffs did not allege the government had sought FISA court approval to conduct surveillance of communications. They had only alleged government will target other individuals—their foreign contacts. No “actual knowledge” of the government’s targeting practices was presented, just speculation and assumptions won whether communications with foreign contacts would be required.

Journalist Chris Hedges stated during oral argument, “I have no choice but to assume that any of my international communications may be subject to government surveillance, and I have to make decisions . . . in light of that assumption.” Attorney Scott McKay asserted that, “[B]ecause of the [FISA Amendments Act], we now have to assume that every one of our international communications may be monitored by the government.”

“Simply put, respondents can only speculate as to how the Attorney General and the Director of National Intelligence will exercise their discretion in determining which communications to target,” Alito wrote in the decision.

The ruling called out the Second Circuit for improperly allowing the case to proceed to the Supreme Court by ruling they had standing “by asserting that they suffer present costs and burdens that are based on a fear of surveillance, so long as that fear is not ‘fanciful, paranoid, or otherwise unreasonable.'” This, in Alito’s opinion, “improperly” watered down the “fundamental requirements” under Article III.

“Respondents’ contention that they have standing because they incurred certain costs as a reasonable reaction to a risk of harm is unavailing—because the harm respondents seek to avoid is not certainly impending,” Alito found. “In other words, respondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.”

Breyer’s dissenting opinion concluded, “While I express no view on the merits of the plaintiffs’ constitutional claims, I do believe that at least some of the plaintiffs have standing to make those claims. I dissent, with respect, from the majority’s contrary conclusion.”

Part of this conclusion was drawn from the fact that McKay, as a defense attorney with clients accused of terrorism, had made assessments as to whether his “client’s interests would be com­promised” if the government “acquired” the communications. He had to choose between forgoing the communication or traveling abroad.

“Since travel is expensive, since forgoing communication can compromise the client’s interests, since McKay’s as­sessment itself takes time and effort,” Breyer found it was reasonable to consider whether the expenditure of time and effort as a “separate concrete, particularized, imminent harm or consider it as additional evidence that the future harm (an interception) is likely to occur.”

Breyer also argued that the Supreme Court had found standing where “the occurrence of relevant injury was far less certain than here.” For example:

Consider Pennell, supra. A city ordinance forbade landlords to raise the rent charged to a tenant by more than 8 percent where doing so would work an unreasona­bly severe hardship on that tenant. A group of landlords sought a judgment declaring the ordinance unconstitutional. The Court held that, to have standing, the landlords had to demonstrate a “‘realistic danger of sustaining a direct injury as a result of the statute’s opera­tion.’” It found that the land­lords had done so by showing a likelihood of enforcement and a “probability,” that the ordinance would make the landlords charge lower rents—even though the land­lords had not shown (1) that they intended to raise the relevant rents to the point of causing unreasonably severe hardship; (2) that the tenants would challenge those in­creases; or (3) that the city’s hearing examiners and arbi­trators would find against the landlords. Here, even more so than in Pennell, there is a “realistic danger” that the relevant harm will occur. [emphasis added]


The individuals and groups challenging the law have no way of challenging the warrantless wiretapping law because the NSA is engaged in secret procedures and, even if one is being wrongfully spied upon or monitored, they cannot obtain records showing they have been victims. The truth is the most one can do to challenge surveillance laws that are unconstitutional is to speculate there will be future injury. However, in this decision, the Supreme Court has effectively made next to impossible for citizens to challenge a key law that grants the government wide latitude to engage in intrusive surveillance.

The other aspect of the ruling that stands out is the allegation that plaintiffs may have been adjusting their work habits so they could challenge the law. The insinuation suggests the plaintiffs are doing this for political purposes and not because they actually fear they will be injured. It is obscene for Alito to write that in his opinion because it questions the integrity of each of the people, who are plaintiffs in the case.

Finally, the case bears a distinct similarity to the lawsuit challenging the NDAA provision that allows the military to indefinitely detain US citizens without charge or trial if they are suspected of providing “substantial support” to “associated forces” of al Qaeda or its affiliate organizations.

A federal appeals court in New York recently heard a government appeal, since the lawsuit won a permanent injunction that declared the provision unconstitutional from Judge Katherine B. Forrest.  The appeals court suggested that they would wait until this decision to issue a ruling because the standing plaintiffs in the NDAA lawsuit seek to challenge the provision rests upon similar arguments of future injury that plaintiffs made in this lawsuit against the warrantless wiretapping law.

 Photo by massmatt released under Creative Commons License

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."