No Exemption from Judicial Review for National Security Surveillance

The Second Circuit last week rejected the Obama administration’s request to dismiss the suit challenging the 2008 FISA Amendments Act (FAA).  Although the appeals court’s opinion in Amnesty v. Clapper addresses only standing, it is an important decision insofar as it rejects the administration’s effort to render national security surveillance non-justiciable and paves the way for merits review of the FAA’s constitutionality.

The plaintiffs in Clapper are attorneys, journalists, and labor, legal, media, and human rights organizations who brought suit to challenge the FAA’s new procedures for authorizing government electronic surveillance targeting non-U.S. persons outside the U.S. for purpose of collecting foreign intelligence. Plaintiffs argue that the procedures violate the Constitution, including the Fourth and First Amendments.

In particular, plaintiffs note that the FAA grants the government broad authority to conduct surveillance of U.S. citizens without making an individualized application to the Foreign Intelligence Surveillance Court identifying the particular targets or facilities to be monitored. Thus, plaintiffs argue, the FAA could authorize the surveillance of all “telephone and email communications to and from countries of foreign policy interest,” such as Russia, Egypt, or Israel, thereby sweeping in countless private conversations of American citizens. By contrast, prior to the FAA, surveillance orders could only authorize the government to monitor specific individuals or facilities, and such orders could issue only on a showing of probable cause. In addition, plaintiffs contend, the FAA lacks adequate safeguards to prevent the dissemination of information obtained through electronic surveillance.

Although the plaintiffs cannot prove that they have been the subject to electronic surveillance under the FAA, they described the professional and economic harms they have suffered. Those harms include ceasing to engage in certain conversations by phone or email to protect the confidentiality of sensitive and privileged communications (thereby compromising their ability to locate witnesses, cultivate sources, etc.), and having to bear the additional costs of traveling overseas to meet with clients, witnesses, and others. The district judge found these harms insufficient to confer standing. The appeals court disagreed.

Much of the court’s discussion turns on whether the plaintiffs had shown more than a mere “subjective chill” from the existence of FAA-based surveillance, which would be insufficient under Laird v. Tatum (the Supreme Court’s 1972 decision denying standing to challenge a U.S. Army surveillance program aimed at public activities that had the potential to create civil disorder). The plaintiffs in Clapper argued they had, explaining that their reasonable fear of government surveillance has forced them to take costly (and reasonable) measures to address the risk of surveillance.  Without rehashing the court’s careful parsing of Article III standing doctrine, here are some broader lessons.

First, the court’s standing analysis suggests significant concerns with the FAA itself, and its infringement on Americans’ free speech and privacy rights. As the court said, the plaintiffs (and thus other lawyers, journalists, etc.) do reasonably fear professional and economic harm from the kind of blanket surveillance orders available under the FAA.  Second, contrary to the government’s suggestion, there is no “surveillance exception” that precludes application of normal Article III standing rules. Finally, government surveillance programs are not insulated from judicial review, even when they involve national security.

Standing, as the Second Circuit observed, is founded on separation-of-powers concerns about the proper–and necessarily limited–role of courts in a democratic society. Without the constraints of standing, judges could freely oversee legislative and executive action, improperly gaining power at the expense of the democratically elected branches.

But standing doctrine, if interpreted too narrowly, can cause distortions of its own, preventing the judiciary from reviewing constitutional questions bearing on important rights of American citizens. That risk is particularly salient in the surveillance context. Since it is virtually impossible for anyone to prove he or she was subject to government surveillance under the FAA, the kind of heightened standing requirement urged by the government means, as a practical matter, that expansions of government surveillance power will not be reviewed by the courts to determine their legality. (Nor can the government be counted on to close the accountability gap by publicly disclosing the legal basis of its surveillance activities, as shown by its recent release of two heavily redacted Bush-era OLC memos in response to the ACLU’s separate FOIA litigation). The Second Circuit’s approach helps mitigate this risk by applying standing doctrine sensibly, with regard for the judiciary’s proper role in the separation of powers and the dangers of unchecked government surveillance powers.

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9 Responses

  1. Orin Kerr says:


    I’m curious, why do you think the Court applied standing doctrine “sensibly”? The decision seems to make Article III standing quite easy to manufacture in any secret surveillance program. No facts are needed, as the Judge merely needs to rely on his gut: If the judge’s gut tells the judge that someone in the plaintiff class may be subject to monitoring, then there is standing. For a plaintiff, it seems you just describe your proposed class appropriately, and then standing is very easy to satisfy. Wouldn’t any decent lawyer be able to generate standing under that standard?

    (A second question is what it even means to challenge a surveillance statute: In the surveillance setting, courts generally consider challenges to surveillance, not to statutes, and here we don’t even know if any surveillance occurred. But that’s another question, I suppose.)

  2. AF says:

    Orin, I don’t think it’s accurate to say that “no facts are needed” to establish standing or that anybody with a good lawyer would have standing under the Second Circuit’s reasoning. The court said that it was the plaintiffs’ demonstrated frequent professional contact with suspected terrorists that gave them standing, and it specifically stated that few other Americans would be able to make this showing. See pages 39-40 of the slip opinion.

    No factual evidence of actual surveillance is needed of course. But I don’t think it’s ever been true that plaintiffs have to have already been injured by a policy in order to have standing.

  3. Jonathan Hafetz says:

    Here, the court didn’t rely on its “gut.” It relied on plaintiffs’ characterization of the scope of the statute, which the Court found to be both reasonable and undisputed by the government (footnote 8); and plaintiffs’ factual allegations, which were also undisputed by the government (footnote 13). So it was “undisputed” that the statute was broad enough to reach plaintiffs’ communications, that plaintiffs engaged in the kinds of communications likely to be intercepted, and that plaintiffs had taken costly and burdensome measures to protect their sensitive information from interception.

    I’m less concerned about a “floodgates problem” with respect to standing to challenge surveillance. Certainly, decent lawyers can always manufacture arguments to try to create standing. But I think lawyers can create plausible arguments in the FAA context only for a limited subset of plaintiffs (e.g., attorneys, journalists, etc. whose behavior is reasonably affected by the statute). And I think what impressed the court here was the plausibility of the plaintiffs’ arguments. I termed the court’s approach sensible because it allows for review of the government’s surveillance powers within the confines of established standing doctrine, given that the secret nature of FAA surveillance makes it difficult to show injury-in-fact. What concerns me (and I think the court as well) is how the government’s standing arguments, if accepted, render the type of surveillance at issue here virtually unreviewable.

  4. Orin Kerr says:


    The Court purported to rely on the judges’ personal “sense of the world,” which people without robes generally refer to as their “gut.” It’s true the the plaintiff’s claims about the program were unrefuted, but, as I understand it, that’s because the surveillance programs are secret. That is, the Government declined to go on the record about the program in order to refute the claims. By that standard, it would seem that any claim anyone makes about any government secret is “unrefuted,” no matter whether it is sensible or outlandish.

    Again, it seems to me that any good lawyer can get Article III standing to challenge any secret surveillance program under the Second Circuit’s standard. Just assemble a class of people who purport to communicate with people who are targets of the alleged secret surveillance program, draw a friendly judge, and you have standing. That may be a feature rather than a bug to you, but it seems out of step with standing doctrine to me.

  5. Jonathan Hafetz says:

    The question was whether plaintiffs could challenge the statute, not the program per se. The statute is public and the suit challenges its constitutionality. The government has not claimed its defense of the statute is secret (and briefed the merits in the district courts). Instead, it argues that the plaintiffs have no standing because they cannot prove their communications have been collected.

    It may be that any good lawyer can claim standing to challenge this statute, but only on behalf of a very limited category of people (those who reasonably fear their communications will be collected and reasonably suffer an injury-in-fact because of measures they take in response). And those are precisely the individuals who should have standing to challenge the statute, even if they cannot show to a certainty they have been surveilled.

  6. Orin Kerr says:


    On the issue is standing, let’s say I start a one-person organization, the “Friends of the Surveilled.” The goal of my group is to communicate with people under surveillance. Any time I think anyone is under surveillance, I try as hard as I can to communicate with them as often as possible, just because that’s what I do for kicks. Under the Second Circuit’s standard, wouldn’t I have Article III standing to challenge any surveillance statute I choose? It seems to me that I would have standing because by deciding to talk to people under surveillance,I am reasonably suffering a fear that I will be surveilled, too –triggering an injury in fact. Does that make me one of the deserving people who should have a cause of action?

    On the merits, can you explain what it means to challenge the constitutionality of a surveillance statute? My understanding has always been that Fourth Amendment surveillance suits have to proceed as as-applied challenges; you can challenge surveillance that happens to be authorized by a statute, but you can’t challenge a statute that in theory permits some surveillance. The leading precedent is Chief Justice Warren’s opinion in Sibron v. New York (1968):

    The parties on both sides of these two cases have urged that the principal issue before us is the constitutionality of § 180-a “on its face.” We decline, however, to be drawn into what we view as the abstract and unproductive exercise of laying the extraordinarily elastic categories of § 180-a next to the categories of the Fourth Amendment in an effort to determine whether the two are in some sense compatible. The constitutional validity of a warrantless search is preeminently the sort of question which can only be decided in the concrete factual context of the individual case. . . .

    The question in this Court upon review of a state-approved search or seizure
    “is not whether the search [or seizure] was authorized by state law. The question is, rather, whether the search was reasonable under the Fourth Amendment. Just as a search authorized by State law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one.”
    Cooper v. California, 386 U. S. 58, 386 U. S. 61 (1967). . .

    Our constitutional inquiry would not be furthered here by an attempt to pronounce judgment on the words of the statute. We must confine our review instead to the reasonableness of the searches and seizures which underlie these two convictions.

    Doesn’t that apply to the Clapper case, too, at least as to the Fourth Amendment issues?

  7. AF says:

    Orin’s hypothetical “Friends of the Surveilled” would run into the problem that if their whole purpose was to be surveilled in order to have standing to challenge surveillance, it’s not clear how they would be injured by the fear of surveillance.

    But if an organization has legitimate reasons to communicate with people who are likely to be suspected of terrorism or surveilled, and actually communicates with such people, and has good-faith reasons to take measures to avoid having those communications surveilled, then it would have standing under the Second Circuit’s reasoning.

  8. Bruce Boyden says:

    “Just assemble a class of people who purport to communicate with people who are targets of the alleged secret surveillance program, draw a friendly judge, and you have standing.”

    Orin, I’m not sure what it is that you want plaintiffs to do to have standing to challenge *anything* that they don’t have direct proof of. Surely it’s not the case that all plaintiffs who are trying to prove some claim (against the government or even a private party) lack an Article III case or controversy if they can’t offer direct (as opposed to circumstantial) evidence in support of their claims in opposition to a motion for summary judgement. Standing to challenge prospective action requires only a “realistic danger” or “actual and well-founded fear” of injury in fact. Those are both objective reasonableness tests. You seem to think there’s something procedurally awry in the court using its judgement to make a determination on objective reasonableness here, but that’s what the test calls for; what else is the court supposed to do? It makes no sense to pass it off to the jury; the whole purpose of standing is to determine whether the plaintiffs are the proper plaintiffs to assert a claim before that claim is litigated. Perhaps this is a problem with standing doctrine, but it’s not a problem unique to this case.

  9. Jonathan Hafetz says:

    Regarding your last question, I think your hypothetical “Friends of the Surveilled” plaintiffs differ from the plaintiffs in Amnesty v. Clapper. My bet is a court would not find their fear reasonable (after all, their purpose is to communicate with people who are being surveilled), nor is there the kind of economic or professional harm the lawyers, journalists, etc. suffer in Amnesty where they are forced to communicate through less efficient and more costly means, as a result of their reasonable fear. Plus, it seems the injury is traceable to the “Friends of the Surveilled’s” conduct. It’s as though the plaintiffs in Friends of the Earth v. Laidlaw had affirmatively sought out a polluted river to swim in rather than stopped swimming, because of fear of defendants’ pollution, in river they’d been swimming in for many years. The injury would have been traceable to their conduct not Laidlaw’s.

    With respect to facial challenges, the suit was brought under the First and Fourth Amendments. Facial challenges are common under the First Amendment, of course. Even under the Fourth Amendment, though, courts will examine the facial validity of surveillance statutes–once plaintiffs have established standing (See, e.g., Berger v. New York, In re Sealed Case (examining the constitutionality of a provision of the Patriot Act)). Standing may have been established differently in those cases, but there’s no bar to a court’s considering a Fourth Amendment facial challenge, so long as there’s a case or controversy.