Blog of the International Journal of Constitutional Law

Clapper v. Amnesty International: Still Trying for a Day in Court

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.


3 responses to “Clapper v. Amnesty International: Still Trying for a Day in Court”

  1. Richard Albert Avatar

    Sudha, thank you for your informative and important post. You bring attention to something that should concern anyone interested in preserving the rule of law in this, not new but certainly intensified, era of national security.

    As you explain, federal courts have been reluctant to wade into matters of national security or foreign policy, yet this deferential posture leaves many without justice, or even the opportunity to seek it.

    Your post and your prior work generally conclude that the United States could strike a better balance between national security and individual liberties. Have you come across any particular jurisdictions where the balance has been, in your view, better struck?

    1. Sudha Setty Avatar
      Sudha Setty

      Thanks for your comment. I’ve written elsewhere about judiciaries in other nations that do a better job of engaging on some level with national security-related claims by the executive branch (and sometimes the legislative branch as well). In particular, Israel has a long history of utilizing a broad justiciability standard to allow for many types of security-related cases to be litigated, which at least allows for claims of government abuse to be heard. However, justiciability very rarely translates into the success of the plaintiffs’ claims. Differing conclusions can be drawn from this: among them that the plaintiffs’ claims are unsubstantiated, that plaintiffs aren’t adequately represented, or that the access to justice afforded under the justiciability doctrine doesn’t translate into substantive justice for the plaintiffs because of structural biases. I think additional research needs to be done to determine which, if any, of these factors are at play. If the last factor is at issue, it then begs the question as to whether Israeli justiciability actually undermines the promotion of the rule of law by providing a veneer of fairness without the substantive justice.

      The United Kingdom has been dealing in the last several years with tensions between a judiciary that seems more invigorated and assured in challenging security-related claims of privilege and secrecy made by the executive, and historical patterns of deference with regard to security-related issues. That tension is still playing out, with the judiciary having issued recent opinions that assert its role as a protector of individual claimants and the rule of law, and the government fighting back by recommending to Parliament the stripping and/or limitation of judicial review. In contrast to the Israeli context, it could be argued that the reason the British government is being so active in trying to limit judicial review is because the access to justice afforded to British litigants is resulting in substantive vindication in terms of access to government information and holdings that the government has abused its authority and its citizens. This comparison in the nature of Israeli and British judicial engagement is worth closer examination.

  2. Alex George Avatar
    Alex George

    Dear Friends,
    National security and individual freedom are to be protected simultaneously.There must be balancing between both, which can be monitored, and assessed, by the Judiciary.Excessive interference so as to curtail the individual freedom and constitutional rights, under the cover of the relevant National security statutes,is a matter to be looked in to by the judiciary even based on the apprehensions pleaded by a plaintiff.
    In a democracy , the courts shall not keep blind eye on the apprehensions, with out entering in to the under lying merits of the pleadings.

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