Supreme Court kills activists’ challenge to FISA spying law

5-4 decision holds groups can't sue unless they can prove they were spied on.

by Joe Mullin

In 2008, Congress passed the "FISA Amendments Act," or FAA. This expanded the government's ability to use electronic surveillance on people located abroad—and, apparently, any Americans they're speaking to. A lawsuit was quickly filed by an array of civil rights groups, labor unions, and media organizations, including Amnesty International, the American Civil Liberties Union, The Nation magazine, the Service Employees International Union, and an international group of criminal defense lawyers.

The Foreign Intelligence Surveillance Act, or FISA, was originally designed to allow spying on the communications of foreign powers. But after the September 11 attacks, FISA courts were authorized to target a wide array of international communications, including communications between Americans and foreigners. While it's tough to know exactly what kinds of communications are being picked up under the FAA rules (because it's all been kept secret), the evidence suggests there has been widespread dragnet-style surveillance of phone calls originating in the US.

In this case, the plaintiffs' groups said their communications were likely being scooped up by the government's expanded spying powers in violation of their constitutional rights. Today's decision, a 5-4 vote along ideological lines by the nation's highest court, definitively ends their case. In an opinion [PDF] by Justice Samuel Alito, the court ruled that these groups don't have the right to sue at all, because they can't prove they were being spied on.

One by one, the legal challenges to expanded government spying in the post-9/11 era are failing in court. In another case—in which an organization did have concrete evidence of spying—the government came up with another legal theory to make the lawsuit go away. In a third case being litigated in a San Francisco federal court, government lawyers are trying to shut down a lawsuit brought by EFF lawyers by asserting the state secrets privilege.

Clapper v. Amnesty International: The case below

Even though they couldn't prove they were being surveilled, all of the plaintiffs argued that they were likely interacting with persons and groups outside the country who were being wiretapped—foreign sources for reporters, activists, and defendants in court cases. They argued they were getting wrapped up in an expanding government initiative of foreign and domestic data collection, and their due-process rights were being violated.

They lost their case in New York district court when a federal judge said they didn't have standing to sue because they couldn't prove they were personally being surveilled. They had nothing more than an "abstract fear that their communications will be monitored" under the new law, wrote the judge.

That order was overturned by a New York federal appeals court, which held that the groups were indeed being injured and should be allowed to sue. They had to take (costly) extra steps to avoid surveillance, and their fear that government agents were listening to them was not "fanciful, paranoid or otherwise unreasonable." It was "extremely likely" that the government would indeed "undertake broad-based surveillance" under the new law, and the advocacy and media groups had "good reason to believe that their communications" would be intercepted, said the appeals panel. The government didn't dispute the fact that those groups were communicating with "likely targets" of surveillance under the new law.

Justices say spying fears of journalists and lawyers are “speculative”

Justice Alito's opinion attacks the group's two main theories supporting their right to sue.

First, he says, there's doubt about whether any surveillance of these groups will take place at all. "It is speculative whether the Government will imminently target communications to which respondents are parties," he states.

Accordingly, it is no surprise that respondents fail to offer any evidence that their communications
have been monitored under §1881a, a failure that substantially undermines their standing theory.

The groups believe the government will target "their foreign contacts," but even that belief is speculative, he notes. "Respondents have no actual knowledge of the Government's... targeting practices." The opinion quotes statements from journalist Christopher Hedges, Scott McKay (an Idaho lawyer who successfully defended a Saudi national against terrorism charges), and previously represented Khalid Sheik Mohammed, the highest-profile detainee at Guantanamo. The journalist and lawyer state that because of the FISA Amendments Act, they have been forced to operate under the assumption that their communications are being monitored.

But because the plaintiffs "have set forth no specific facts demonstrating" their foreign contacts will be monitored, their argument fails. Even if the government did try to get their communications, they have no idea whether the FISA court would authorize that surveillance, the opinion states. Thus, the plaintiffs' theory rests of a "speculative chain of possibilities" that don't establish any impending injury.

As to the costs and burdens of avoiding potential surveillance, Alito is dismissive. "Respondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending," Alito writes.

The majority opinion was joined by Justices Antonin Scalia, Clarence Thomas, and Anthony Kennedy, as well as Chief Justice John Roberts.

Four justices disagreed with today's ruling. Journalists, lawyers, and human rights researchers who collect information from foreigners "with knowledge of circumstances related to terrorist activities" are going to be a tempting target for the government's expanded powers, writes Justice Stephen Breyer. He is joined in a dissent by Justices Ruth Ginsburg, Sonia Sotomayor, and Elena Kagan.

"The Government, after all, seeks to learn as much as it can reasonably learn about suspected terrorists (such as those detained at Guantanamo), as well as about their contacts and activities, along with those of friends and family members," Breyer writes.

The government's future spying targets can also be reasonably guessed at based on past behavior, the dissenters suggest. Scott McKay notes that the US government already "intercepted some 10,000 telephone calls and 20,000 e-mail communications involving [his client] Mr. Al-Hussayen." McKay often has to travel abroad to avoid telephonic communication with foreign clients, which might be intercepted.

While the dissent doesn't express any opinion about the actual merits of the case, it argues that the plaintiffs should have been allowed to move forward with their case. The Supreme Court has found standing to sue in other cases, "where the occurrence of the relevant injury was far less certain than here," Breyer notes.