Standing to Challenge Wiretap Law Divides Circuit
Mark Hamblett New York Law Journal, September 22, 2011

The constitutionality of an amended national security wiretapping law has triggered a sharp split at the U.S. Court of Appeals for the Second Circuit.

In a decision that sets up a trip to the U.S. Supreme Court, the Second Circuit by the narrowest of margins voted yesterday to deny hearing en banc a decision recognizing that lawyers, journalists and human rights groups have standing to challenge amendments to the Foreign Intelligence Surveillance Act (FISA) because they fear their conversations are being, or will be, intercepted by the U.S. government.

With a majority of the full panel of active judges needed to win rehearing, judges in favor of en banc review fell one vote short, with the panel splitting 6-6.

Judges Debra Ann Livingston, Dennis Jacobs, Jose Cabranes, Reena Raggi and Richard Wesley dissented, delivering or joining in three opinions arguing that the full court should rehear the case. The sixth vote came from Judge Peter Hall, who did not join the other dissenting opinions but said he believed en banc review was merited because the case involved a question of "exceptional importance."

The plaintiffs' facial challenge to the statute should be rejected because they cannot be targeted under the statute, the dissenters said, and they charged the original panel that issued its decision in March in Amnesty International United States v. Clapper, 09-4112-cv, had turned the standard for standing on its head.

Judge Gerard Lynch issued the lone opinion defending the denial of rehearing. He first agreed that the case met the "exceptional importance" standard and acknowledged that the original opinion "may be in tension" with those of other circuits.

"But I dispute the dissenters assertions that Amnesty somehow distorts the law of standing, or, in Judge Livingston's words, 'threatens a sub silentio transformation of this Circuit's case law,'" he said.

Judge Lynch was on the original panel that decided the case last spring (NYLJ, March 22) along with Senior Judges Robert Sack and Guido Calabresi. That decision reversed Southern District Judge John Koeltl, who had ruled in 2009 that the plaintiffs lacked standing (NYLJ, Aug. 21, 2009).

The other active judges on the circuit who joined Judge Lynch in denying rehearing are Rosemary Pooler, Robert Katzmann, Denny Chin, Raymond Lohier and Susan Carney.

Judge Lynch said the original opinion spoke for itself and he was writing only to respond to points raised by the dissent.

In March, the panel said lawyers, journalists, human rights groups, labor groups and others could challenge §702 of FISA, 50 U.S.C. §1881a, a provision that was added in the FISA Amendments Act of 2008 (FAA) and set new procedures for electronic surveillance of non-U.S. citizens abroad.

It allows the executive branch to apply to the Foreign Intelligence Surveillance Court for mass surveillance authorization instead of making an individualized application focused on specific targets or facilities, requiring only a certification that "a significant purpose of the acquisition is to obtain foreign intelligence information" and that the information will be obtained "from or with the assistance of an electronic communication service provider."

Plaintiffs argue the statute's provisions for "targeting" to ensure authorization is limited to people outside the United States and "minimization procedures" designed to ensure compliance with the Fourth Amendment are inadequate.

Jameel Jaffer of the American Civil Liberties Union argued before the Second Circuit in 2010 that the new monitoring regime had a chilling effect on the plaintiffs' speech, as the fear of having their conversations with their clients taped forced them to take steps, such as traveling, to avoid being overheard by the U.S. government (NYLJ, April 19, 2010).

Douglas Letter, an appellate litigation counsel with the U.S. Department of Justice, argued that plaintiffs had no standing because the contended injury to them was too speculative.

In March, the three-judge panel said the plaintiffs had alleged a "reasonable fear of future injury and costs incurred to avoid that injury."

'Unprecedented' Rule

Yesterday, Judge Raggi issued a 40-page dissent to the denial of en banc review, joined in by all of the dissenters save Judge Hall.

She said the March panel found standing "even though plaintiffs cannot be targeted for surveillance under that statute, cannot demonstrate actual or imminent interception of any of their communications, and may in fact never experience such interception."

She added, "A rule that allows a plaintiff to establish standing simply by incurring costs in response to a not-irrational fear of challenged conduct is unprecedented. On that theory, every mobster's girlfriend who pays for a cab to meet with him in person rather than converse by telephone would be acting on a not-irrational fear of a Title III interception, and, therefore, have standing to challenge."

The Supreme Court, she said, has held "that subjective fear of challenged government conduct is insufficient to support standing, and that forbearance action can only do so when a plaintiff would otherwise certainly be subject to the challenged conduct."

Judge Livingston, joined by the same four judges, said the March panel threatened to upset case law regarding "'probabilistic harm' meaning the narrow circumstances in which this court has recognized injury in fact to exist based on the risk of some future harm."

The panel, she said, "did not explain its disregard of the Supreme Court's requirement that injury must be actual or imminently threatened," expressed in Summers v. Earth Island Inst., 555 U.S. 488 (2009).

Judge Jacobs, speaking for himself, said the plaintiffs' averments on harm "seem to me inadequate, implausible, and illusory."

He said it was a "defect" in the panel opinion to avoid even a glance at merits review that is needed to determine a Fourth Amendment violation.

Such a review, he said, "refutes harm and redressability, and should therefore have defeated standing."

The judge took aim at the "supposed anxieties" of the plaintiffs.

Of those plaintiffs who submitted affidavits, Judge Jacobs said, only two were lawyers who represent clients: Scott McKay and Sylvia Royce, who represent Guantánamo detainees. But Mr. McKay did not specify a single trip he took to avoid monitoring and Ms. Royce took only one trip—to New York to meet another lawyer for a conversation she could have had by phone, Judge Jacobs said, a call that would not have been subject to the act.

In closing, Judge Raggi took issue with Judge Lynch's statement that denying standing would "close" courthouse doors.

"Rather, it is our remaining colleagues who decline to consider whether a questionable standing standard should become the law of this circuit," she said. "There is, however, another courthouse, and those of us here in dissent can only hope that its doors will be opened for further discussion of this case."

In his opinion, Judge Lynch took issue with the "theme that runs through all the dissents"—that the panel should have been more skeptical about the plaintiffs' averments.

He said the case came to the panel on summary judgment, where a court must take the allegations as true.

He agreed that, where subject matter jurisdiction is at issue, there was an independent obligation to question even undisputed facts.

"Certainly, parties cannot confer jurisdiction on the court by stipulating to facts that are false," Judge Lynch said. "But this is hardly an example of collusive stipulation to facts that, as Chief Judge Jacobs would have it, are fanciful," he said, adding that the reasons for plaintiffs' belief that their "communications are likely to be intercepted by the government" under the amended act "are anything but implausible."

Broadened Risk

Judge Lynch continued, "As the panel opinion explains, the FAA indisputably and significantly broadens the risk of interception, lowers the government's probable-cause burden, and decreases the oversight role of the Foreign Intelligence Surveillance Court."

Before, he said, the Foreign Intelligence Surveillance Court would issue a warrant only if it saw probable cause that the target was a foreign power or its agent and that the target was using or about to use the facility to be monitored. The court, he said, "had to find probable cause for each specific search, and maintained a continuing oversight role after each probable cause determination."

But no longer, he said. Under the current administration, the FISA court does not monitor the "targeting" and "minimization" procedures—that is left to the attorney general, the Director of National Intelligence and the Senate and House Judiciary committees.

Judge Lynch said that, contrary to the dissents, the panel's opinion did anything but muddle the well-established requirements of "injury in fact, causation and redressability."

He said the dissents "seem to misunderstand our injury analysis," as the panel had addressed both present and future injury.

Despite Judge Jacobs emphasis on two lawyers, he said the panel made it "abundantly clear" that it went beyond lawyers and found "all of the plaintiffs incurred professional and economic costs in order to protect clients or sources."

Judge Lynch said it was "hard to take seriously" the dissents' charge that the plaintiffs' assertion their overseas contacts are likely to be government targets was "speculative."

"As the opinion explains, the plaintiffs overseas contacts include, for example, alleged al Qaida members (and Guantánamo detainees) Khalid Sheik Mohammed and Mohammedou Ould Salahi, as well as those men's families," he wrote.

Judge Lynch said the plaintiffs faced "a difficult road" in proving that the law violates the Fourth Amendment in the face of the "paramount necessity of protecting the nation' security against very real and dangerous external threats." But the argument should be heard in open court, he said.

"To reject the plaintiffs' arguments not because they lack merit, but because we refuse to hear them, runs a much graver risk than whatever invasion of plaintiffs' privacy might be occasioned by the surveillance authorized by the challenged statute," he said

Mark Hamblett can be contacted at mhamblett@alm.com.

Judges' Bios

Circuit Grants Standing in Challenge to FISA Law
Mark Hamblett , NYLJ, March 22, 2011

Attorneys, journalists and human rights organizations have standing to challenge amendments to the Foreign Intelligence Surveillance Act they claim gives the executive branch unbridled authority to monitor their communications with people overseas, the U.S. Court of Appeals for the Second Circuit ruled yesterday.

Reversing a lower court, the Second Circuit said the groups have standing to sue over §702 of the act, which was added to FISA, 50 U.S.C. §1881a, by the FISA Amendments Act (FAA) of 2008 to create new procedures for authorizing electronic surveillance against non-U.S. individuals outside the United States.

The reason, the court said in the case of Amnesty International USA v. Clapper, 09-4112-cv, was that attorneys, journalists, human rights groups have alleged a "reasonable fear of future injury and costs incurred to avoid that injury."

The 2008 changes allowed for the first time the executive branch to apply to the Foreign Intelligence Surveillance Court for mass surveillance authorization rather than an individualized application aimed at specific targets or facilities. The government must simply certify that "a significant purpose of the acquisition is to obtain foreign intelligence information" and that the information will be obtained "from or with the assistance of an electronic communication service provider."

The process also includes "targeting procedures" to ensure that the authorization is limited to people outside of the United States and "minimization procedures" that include compliance with the Fourth Amendment.

Southern District Judge John G. Koeltl had ruled in 2009 that the plaintiffs, who also include labor groups and legal associations like the International Criminal Defense Attorneys Association, lacked standing because they "make no claim that their communications have yet been monitored, and they make no allegation or showing that the surveillance of their communications has been authorized or that the government has sought approval for such surveillance" (NYLJ, Aug. 21, 2009).

Among the evidence put before Judge Koeltl by the plaintiffs was an opinion by Professor Stephen Gillers of New York University School of Law, who said that lawyers were ethically obligated to take steps, such as traveling, to ensure their confidential conversations with clients stay confidential.

The plaintiffs appealed to the Second Circuit, where oral arguments were heard by Judges Guido Calabresi, Robert D. Sack and Gerard E. Lynch last April (NYLJ, April 19, 2010).

Legitimate Activities

At oral arguments, Jameel Jaffer of the American Civil Liberties Union stressed what he said was the monitoring program's chilling effect: the fear of having their conversations with clients or connections abroad monitored forced lawyers and other plaintiffs to take steps, such as traveling, to avoid having their conversations overheard by the government.

In a 63-page opinion yesterday written by Judge Lynch, the circuit emphasized it was not addressing the merits of the challenge to the amendments.

But the panel said the plaintiffs had established that the measures they had taken to avoid monitoring "are not overreactions" to the 2008 FISA amendments and had successfully "linked" their injuries to the statute.

"In sum, the FAA has put the plaintiffs in a lose-lose situation: either they can continue to communicate sensitive information electronically and bear a substantial risk of being monitored under a statute they allege to be unconstitutional, or they can incur financial and professional costs to avoid being monitored," Judge Lynch said. "Either way, the FAA directly affects them."

At oral argument, Douglas Letter, U.S. Department of Justice appellate litigation counsel, contended the injury to the plaintiffs was too speculative to confer standing.

He cited as the only major case on standing in the surveillance context Laird v. Tatum, 408 U.S. 1 (1972), where the U.S. Supreme Court denied standing to plaintiffs who challenged the Department of the Army's alleged surveillance of peaceful civilian political activity.

The Laird Court, Mr. Letter said, required plaintiffs to show "either a specific present objective harm or a threat of specific future harm."

But Judge Lynch said yesterday that the Amnesty International case "is a far cry from Laird."

In Laird, the Supreme Court said the plaintiffs had problems establishing injury and had cast "considerable doubt" on whether they were actually chilled by the program. There was also no evidence of "illegal or unlawful surveillance," the Supreme Court said, and the real complaints were more about the appropriateness of the Army's role in domestic surveillance and the general fear that the data would be misused in the future.

Judge Lynch said that, compared with the Laird plaintiffs claiming "they might be injured if the information lawfully collected by the military were misused in some unspecified way at some unspecified point in the future," the plaintiffs in Amnesty International "have alleged concrete and specific injuries."

"They set forth specific, concrete reasons to believe they are likely to be overheard, because their legitimate activities bring them into contact with the very types of people who are the professed targets of the statutorily authorized surveillance," Judge Lynch said.

The Second Circuit also explicitly rejected Mr. Letter's argument that, even if Laird did not govern the case, Laird created special, stricter, standing rules than those that apply to other cases.

"From our perspective, this is a great decision," the ACLU's Mr. Jaffer said yesterday.

"For too long the government has been using unwarranted secrecy to insulate surveillance practices from judicial review," he said. "This decision ensures the government surveillance program won't be immune from that kind of review."

Judge Koeltl's decision was vacated and the case was remanded to the district court. Mr. Jaffer said the plaintiffs will now renew their efforts to obtain an injunction blocking the operation of §702 as facially unconstitutional.

Mark Hamblett can be contacted at mhamblett@alm.com.

Refusing to Grant Standing, Judge Rebuffs Challenge to Overseas Wiretapping Law
Mark Hamblett, New York Law Journal, August 21, 2009

A challenge by attorneys, human rights groups and journalists to the U.S. government's overseas wiretapping program was dismissed yesterday.

Southern District Judge John G. Koeltl found the plaintiffs lacked standing to attack amendments to the Foreign Intelligence Surveillance Act of 1978 allowing for surveillance of phone calls and other communications abroad, even when the person on the other end of the line is an American.

The judge's ruling in Amnesty International v. McConnell, 08 Civ. 6259, rejected the claim that §702 of the act, which was added in the FISA Amendments Act of 2008, was facially unconstitutional.

"The plaintiffs fear their international communications will be monitored under" the FISA Amendments Act, Judge Koeltl said in a 64-page opinion. "They make no claim that their communications have yet been monitored, and they make no allegation or showing that the surveillance of their communications has been authorized or that the government has sought approval for such surveillance."

Under the amendments, federal officials seeking foreign intelligence information may apply to the Foreign Intelligence Surveillance Court for approval to wiretap non-U.S. citizens located outside the United States.

But Amnesty International and other human rights organizations, as well as reporters and lawyer groups such as the International Criminal Defense Attorneys Association, claimed they were unable to dotheir jobs out of fear their conversations might be monitored.

At a hearing in July on the matter, Jameel Jaffer of the American Civil Liberties Union argued that plaintiffs had met the requirement of standing.

The plaintiffs, he said, "have a well-founded fear that their communications will be monitored" and "you don't have to wait until your injury is consummated" (NYLJ July 23).

Mr. Jaffer also stressed that some lawyers had already suffered "concrete injury" because they had to avoid the telephone and were forced to take trips abroad to speak with their clients in private.

Anthony J. Coppolino, special litigation counsel with the U.S. Department of Justice, represented the government.

"I don't think the issue of standing is a terribly close one," he said during last month's hearing. "You can't build jurisdiction on conjecture or a hypothetical."

Mr. Coppolino also sought to reassure Judge Koeltl that so-called "reverse targeting" of Americans — wiretapping a foreign national who just happens to be speaking with an American — is forbidden. Mr. Coppolino said that so-called "targeting and minimization procedures" protect against abuse of the authority.

But Judge Koeltl never had to reach the merits of the law's constitutionality.

"The plaintiffs can only demonstrate an abstract fear that their communications will be monitored" under the FISA Amendments Act, he said, adding later that, contrary to their claims, the act itself "does not authorize surveillance of the plaintiffs' communications."

The judge explained that government officials are authorized to seek an order from the surveillance court and "that order cannot target the plaintiffs."

"No case from within or outside the context of surveillance provides any basis to conclude that the speculative fear of harm asserted by the plaintiffs is sufficient to support standing for a pre-enforcement challenge," he said.

The judge then rejected Mr. Jaffer's claim of concrete injury — the cost of trips abroad to meet with clients.

"The costs the plaintiffs have incurred in an effort to protect the confidentiality of their international communications fail to provide a basis for standing to challenge the constitutionality" of the law, he said.

The judge noted that the costs incurred flowed from the plaintiffs' first argument on standing — their fear of surveillance.

"To allow the plaintiffs to bring this action on the basis of such costs would essentially be to accept a repackaged version of the first failed basis for standing," Judge Koeltl said.

Mr. Jaffer said yesterday that the decision was a disappointment for many reasons, one being that "it doesn't grapple with the very real effect" of the law.

"The attorney plaintiffs have had to take costly and burdensome measures to protect the confidentiality of their communications and they have had to do that because of their well-founded fears their communications would be monitored," he said. "And to say plaintiffs can't challenge this law unless they can show their communications were intercepted is to say that a law like this may not be subject to judicial review at all."

Mark.Hamblett@incisivemedia.com