U.S. Supreme Court

Lawyers, journalists have no standing to challenge foreign surveillance law, SCOTUS rules

A group of plaintiffs that includes lawyers and legal organizations has no standing to challenge a foreign surveillance law, the U.S. Supreme Court ruled Tuesday in a 5-4 opinion.

Justice Samuel A. Alito Jr. wrote the majority opinion (PDF) finding that the plaintiffs had not established an injury in fact based on their assertion that their communications could be intercepted. The plaintiffs cannot establish standing based on their “highly speculative” theory of future injury, Alito said, nor by taking present-day measures to avoid “hypothetical future harm.”

The law as amended in 2008 authorizes surveillance of foreigners who are outside the United States, with advance approval of the “targeting procedures” by the Foreign Intelligence Surveillance Court. The American Civil Liberties Union, which filed suit on behalf of the plaintiffs, says in a press release that the 2008 law permits “dragnet surveillance” without identifying the targets to any court. Dissenting Justice Stephen G. Breyer used different wording; he said the law permits surveillance “on a programmatic, not necessarily individualized, basis.”

The groups seeking to challenge the law contend that their work requires them to communicate with likely surveillance targets. The plaintiffs include lawyers representing accused terrorists as well as legal, human rights, labor and media organizations.

Alito said the plaintiffs cannot establish standing based on a theory of future injury that relies “on a highly attenuated chain of possibilities.” The government would have to decide to target communications of people with whom the plaintiffs communicate, it would have to invoke the law at issue, the Foreign Intelligence Surveillance Court would have to approve the wiretap procedures, the government would have to succeed in intercepting the communications, and the plaintiffs would have to be parties to intercepted communications.

“In sum, respondents’ speculative chain of possibilities does not establish that injury based on potential future surveillance is certainly impending or is fairly traceable to” the law at issue, Alito wrote.

As an alternate theory, the plaintiffs contended they were suffering present injury because their fear of surveillance was causing them to take costly and burdensome measures to keep their communications confidential. The plaintiffs said they avoid some email and phone conversations, they talk in generalities, or they travel to have in-person conversations. Alito rejected that argument as well.

“Respondents cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending,” Alito wrote. “If the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear.”

Breyer’s dissent was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Breyer saw “a very high likelihood” that the government, acting under the law, will intercept some of the plaintiffs’ communications. One plaintiff, for example, is a lawyer who represented a defendant acquitted on terrorism charges and Guantanamo detainee Khalid Sheik Mohammed, who has been described as the mastermind of the Sept. 11 attacks.

“The government does not deny that it has both the motive and the capacity to listen to communications of the kind described by plaintiffs,” Breyer wrote. “Nor does it describe any system for avoiding the interception of an electronic communication that happens to include a party who is an American lawyer, journalist or human rights worker.”

ACLU deputy legal director Jameel Jaffer criticized the “disturbing decision” in a press release. ” “This ruling insulates the statute from meaningful judicial review and leaves Americans’ privacy rights to the mercy of the political branches,” Jaffer said.

The case is Clapper v. Amnesty International.

Updated at 1:35 p.m. to include information from the ACLU press release.

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