—Sudha Setty, Western New England University School of Law
In the last decade, U.S. courts have consistently blocked civil suits seeking damages for government overreaching in its counterterrorism programs. Most cases have been dismissed at the pleadings stage, as courts have found plaintiffs to be without standing and/or have found that plaintiffs who have standing have no real way of bolstering their case because of lack of discoverable materials. The result? No redress for those who have been on the receiving end of potentially unconstitutional overreaching by the government. This is particularly true in light of the lack of accountability after government investigations of abuse, and the decisions of the government not to prosecute anybody involved in past overreaching.
Justiciability barriers in U.S. courts, differing significantly from their counterparts in other nations, have prevented numerous plaintiffs alleging rendition, torture, warrantless wiretapping and racial and religious profiling from ever getting the merits of their cases heard.
With that context, it’s important to take a close look at the arguments in Clapper v. Amnesty International, heard by the U.S. Supreme Court in October 2012.
In Clapper, the Court is being asked to determine whether plaintiffs have Article III standing to challenge the key provisions of the FISA Amendments Act of 2008 (“FAA”) that allow for broad warrantless surveillance of calls that could be international in nature. This question boils down to whether there is a broad foreign intelligence surveillance exception to the Fourth Amendment protections against unreasonable search and seizure, even when that “foreign intelligence” turns out to be largely domestic.
For example, Amnesty International and other plaintiffs, including nonprofit groups and journalists, are engaging in international communication under the FAA standard if a group email is sent to a legal team or reporting team that includes one person who sometimes works outside of the United States. Such communications may fall within the exception to the Warrant Clause outlined by the FAA in a way that undermines the groups’ and journalists’ ability to operate and to speak freely, since there’s no external check on the executive’s ability to conduct surveillance as it sees fit. The government has refused to disclose whether these plaintiffs have been subjected to surveillance, leaving the organizations to their conjecture. As a result, the plaintiff organizations and journalists argue that they must make costly trips to meet in person instead of using the phone or email to communicate, simply to ensure confidentiality in their communications.
The government’s position here is roughly along the same lines as it has been in any number of civil cases in which plaintiffs have alleged unconstitutional government actions: it is not the job of the courts to interfere with important national security and foreign policy matters. This has been an effective and successful argument almost every time the government has used it in the last ten years, in all types of counterterrorism-related cases.
In Clapper, will the Court concretize the formalist stance of lower courts over the last decade, finding that plaintiffs have no standing? Or will the court reaffirm the Second Circuit’s finding that enough immediate harm has befallen the plaintiffs such that they should be able to litigate the merits of their case?
Here are a few thoughts on what might convince the Supreme Court to allow this case to be litigated on the merits, and to step away from the formalist deference that has characterized so much of the post-9/11 U.S. judicial mindset:
First, although the judiciary generally seems to prefer formalistic deference to engagement with national security and foreign policy matters, the Foreign Intelligence Surveillance Court of Review already engaged with certain aspects of the constitutionality of the Foreign Intelligence Surveillance Act of 1978 (“FISA”), holding in 2002 that FISA did not prevent the government from using intelligence it gathered for the purpose of criminal prosecution, and holding in 2008 that the Protect America Act of 2007, amending FISA in ways that are similar in some respects to the FAA, was constitutional. Thus, it may be the case (as Steve Vladeck cogently argued elsewhere) that the Second Circuit saw the need for Article III courts to clarify the parameters of the FISA Amendments Act of 2008, and that the Supreme Court would like to resolve the constitutional issues definitively.
Second, the potential impact of the FAA is prospective. Unlike the retrospective detention and rendition-related cases that have generated so many dismissals at the pleadings stage, the Supreme Court will be dealing with a statute that would arguably gut the Warrant Clause with regard to national security, foreign policy, and perhaps even criminal investigation-related surveillance going forward.
Third, Clapper has important First Amendment implications, and such cases always have a special place in the heart of the American judiciary. U.S. courts have been more willing to entertain matters in which claims that political speech is being chilled are credible, even if the ultimate result on the merits is to conclude that national security interests trump any speech infringement that might occur.
Oral argument in Clapper gave some sense that the potentially broad application of the FAA—already affecting the legal representation of individuals—troubled at least some of the justices. Other justices seemed comfortable with the idea that, as with other national security matters, this was simply an area in which Article III courts should not trespass (but, perhaps, that the Foreign Intelligence Surveillance Court could provide some oversight). Ultimately, how the court comes down on the FAA and the serious constitutional concerns it raises still seems unclear after oral argument.
As I’ve written elsewhere, I hope that U.S. courts will at some point take a page from the judiciaries of some of our allies and 1) stand behind their rhetoric of access to justice by allowing for cases alleging constitutional violations in the name of counterterrorism/national security/foreign policy to actually be litigated on the merits, and 2) consider the long-term role of the judiciary with regard to foreign policy and national security—when the political branches of government enable and encourage violations of basic constitutional rights, one of the tasks of the judiciary has to be to stand up for the rule of law. To this end, I’m not speaking to the merits of the plaintiffs’ case in Clapper or even if the case would survive the inevitable invocation of the state secrets privilege should it continue forward (that’s a post for another day). I’m simply hoping that the Court recognizes the importance of the plaintiffs’ right to keep fighting their battle.