In Amnesty v. Blair—Questions of Surveillance, Harm and Standing

A federal appeals court today heard arguments in Amnesty v. Blair, a legal challenge to the constitutionality of recent amendments to the Foreign Intelligence Surveillance Act (FISA). The suit, brought on behalf of attorneys and human rights, labor, legal, and media organizations whose work requires them to engage in sensitive communications located outside the United States, claims that the surveillance of international communications authorized by the FISA amendments violates the First and Fourth Amendments.

The issue before the appeals court was not, however, whether surveillance carried out under the statute is constitutional. Instead, the plaintiffs were faced with the task of establishing standing—showing that they had been injured by the statute—thus granting them the right to challenge the statute in court. The lower court accepted the government’s argument that, because the plaintiffs could not definitively show that they had been subjected to surveillance under the statute, any harm they might have suffered was too remote.

Plaintiffs, on the other hand, identify two ways in which they’ve sustained concrete harm: First, there is their actual, well-founded fear of having their communications collected, retained, and disseminated by the government; and second, they point to expenses and inconveniences incurred in carrying out their professional activities so as to avoid exposure to FISA surveillance. These measures include costly overseas travel in lieu of certain communications, and refraining entirely from other communications.

As the argument played out—characterized by excellent showings on the part of both attorneys as well as extremely astute and well-prepared judges—it became evident that the outcome might well turn on the meaning of a particular Supreme Court case: Laird v. Tatum, a challenge to a U.S. Army surveillance program by plaintiffs who worried that the government would collect and then misuse information about them. This concern, the Supreme Court said in Laird, did not rise to the level of injury required to challenge the program in court. Instead, the Court said, plaintiffs challenging a surveillance regime must show that they are immediately in danger of being subjected to surveillance before the courthouse doors are open to them.

Laird—the only Supreme Court case addressing what a plaintiff must show to challenge a surveillance program, as the judges repeatedly pointed out today—contains two relevant ambiguities. First, there is the question whether it creates a separate set of rules for surveillance, which would require anyone seeking to challenge a government surveillance program first to show that she had been subjected to—or was imminently about to be subjected to—surveillance. There is, as Judge Guido Calabresi pointed out, some good reasons to think this makes sense. After all, in the context of surveillance, where potential plaintiffs often will not know whether or when their communications have been intercepted by the government, it would be quite difficult to craft a rule that would narrow the class of people able to come into court.

At the same time, as ACLU Attorney Jameel Jaffer replied, the implications of creating a surveillance-specific rule are profound: because potential plaintiffs rarely will be able to show that they have been subjected to surveillance, such a rule would essentially insulate statutes like FISA from judicial review. Under such circumstances—as the Brennan Center and other groups pointed out in an amicus brief submitted to the court—the historically important role that the judiciary has played in policing the constitutional boundaries of permissible surveillance activities would be eliminated.

But even if Laird does not initiate a surveillance-specific rule, it is ambiguous in another respect. As Judge Calabresi repeatedly pointed out, Laird and other Supreme Court cases provide very little guidance regarding how high a likelihood of harm a plaintiff must show to satisfy his burden. And the language in Laird is sufficiently ambiguous that it lends itself to either broad or narrow readings. For example, at times it seems to require that a plaintiff is “immediately in danger of sustaining a direct injury.” And the government took great comfort today in that language.

At the same time, the case expressly notes that “actual or threatened injury” due to unlawful government activity would not go unremedied by the Court. But exactly what qualifies as “actual or threatened” harm, Laird failed to make clear. And picking a spot along the spectrum of likelihood that is sufficient is a task that at least one of the judges on today’s panel seemed reluctant to undertake. Plaintiffs, for their part, argue that whatever spot along that continuum the court might pick, they have met their obligation.

The judges, while clearly well-prepared and engaged in the argument, did not give their intentions away. Judge Robert Sack rarely spoke, but when he did he expressed discomfort with each side’s position as well, noting at one point that he was more comfortable with a rule that required actual harm, rather than a well-founded fear of harm but at another showing concern with respect to whether anyone would ever be able to challenge the statute. Judge Gerard Lynch was also relatively even-handed, probing the weaknesses on each side. Judge Calabresi seemed sympathetic to both of the plaintiffs’ theories of standing—the one based on a fear of surveillance as well as the one based on costs incurred in preventing sensitive communications from being exposed to the possibility of surveillance. At times he even seemed anxious to provide the plaintiffs with additional arguments to rebut the government’s side.

But whether Judge Calabresi’s questioning belied his true position—and whether either of his colleagues will join him in reversing the lower court—we will know only when the court publishes its decision, probably in a few months.