Lawsuits attempting to hold the government and telecom companies accountable for illegal warrantless wiretapping under President George W. Bush have encountered three main obstacles: the state secrets privilege, the constitutional requirement of standing, and Congress’s retroactive grant of immunity to telecom companies that cooperated with the government. Recently, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit solidified one of these obstacles, but dealt a mortal blow to another.
In Hepting. v. AT&T Corp., the Ninth Circuit held that Congress’s retroactive grant of immunity to telecom companies — set forth in section 802 of the FISA Amendments Act of 2008 (“FAA”) — passed constitutional muster. The district court had described the provision as “sui generis” among immunity laws. Congress in the FAA did not retroactively change the substantive law to legalize the telecoms’ alleged assistance to the intelligence community. Instead, Congress required courts to dismiss any case against a telecom company if the Attorney General filed a certification asserting one of the following: that the telecom companies had statutory authority for their alleged actions; that they didn’t actually perform the alleged actions; or that they acted pursuant to a directive from the president or other high-ranking official. In other words, even if the companies broke the law, the Attorney General could essentially tell the court to dismiss the case.
In upholding the section 802’s validity, the Ninth Circuit panel rejected several arguments against its constitutionality. Unfortunately, though, the panel did not address the crux of the issue. In an amicus brief filed in related litigation, In re NSA Telecommunications Records Litigation, the Brennan Center explained that section 802 violates the Constitution’s prohibition on congressionally enacted “rules of decision.” Under United States v. Klein, 80 U.S. (13 Wall.) 128 (1871) and its progeny, Congress cannot intervene in existing litigation and compel a particular result without changing the underlying substantive law. Such intervention violates the Separation of Powers by arrogating to Congress the inherently judicial function of deciding cases. Here, Congress did not change the underlying law but instead created a mechanism which could have only one result in a particular set of pending lawsuits — dismissal of the case.
The plaintiffs in Hepting made a version of this argument, but the panel avoided grappling with it by merely distinguishing the facts of the case cited by the plaintiffs, Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995). Although the facts in Plaut were indeed distinguishable, few cases present perfectly analogous fact patterns. The principles enunciated in Plaut were nonetheless applicable in this case and should have held sway.
The same three-judge panel took greater care in resolving the question of standing in Jewel v. National Security Agency. In order to have constitutional standing, a plaintiff must allege, among other things, that she suffered an “injury in fact” — i.e., a concrete and particularized grievance. This issue has bedeviled the wiretapping lawsuits from the outset. Because of the intense secrecy of the wiretapping program, plaintiffs generally don’t know if their phone calls or emails were wiretapped. This shouldn’t matter if the plaintiffs can show that they were injured by the program nonetheless — for example, if they had a reasonable fear that their communications might be intercepted and they incurred some cost or burden in taking evasive measures. But some of the decisions in the wiretapping cases have contemplated a higher burden, essentially requiring plaintiffs to do the impossible and prove what the government has taken great pains to hide.
The case decided by the Ninth Circuit panel recently was unusual in that the plaintiff did not allege that her communications might have been intercepted, but instead alleged the existence of a dragnet that actually did capture her communications. The panel therefore had little trouble determining that the plaintiff stated sufficiently concrete injuries. A more fulsome analysis was required to determine whether her injury was sufficiently “particularized,” but the panel ultimately concluded that even widespread injuries — including those shared by many or even most Americans — may confer standing if they are sufficiently concrete. Most notably, the panel rejected the district court’s assertion that plaintiffs must make a particularly persuasive showing of standing in national security cases.
The Ninth Circuit thus joins the Second Circuit (Amnesty International USA v. Clapper, 638 F.3d 118 (2d Cir. 2011)) in upholding the standing of plaintiffs in warrantless wiretapping cases. As noted by the panel in Jewel, the Second Circuit’s decision goes even further because it upholds standing in a case where the plaintiffs did not allege that they were actually wiretapped. These decisions stand in stark contrast to the Sixth Circuit’s decision denying standing to the plaintiffs in ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007).
The approach of the Ninth and Second Circuits should prevail. These courts’ decisions do much more than clarify arcane rules of jurisdiction. They are key victories for the rule of law. As the Brennan Center argued as amicus curiae in Amnesty, history shows that the executive branch’s authority to engage in surveillance is prone to abuse. For example, as the Church Committee revealed, between 1930 and 1970 the government regularly intercepted the communications of civil rights activists (including Martin Luther King, Jr. and the NAACP) and others who were suspected of no crime, but who took positions that the government disagreed with. Judicial oversight has been, and will continue to be, a key factor in preventing these kinds of abusive activities. A standard that requires plaintiffs to prove that they are victims of secret surveillance in order to challenge its legality not only exceeds the requirements of the Constitution but would effectively preclude judicial review of one of the government’s most intrusive and most frequently abused authorities. Such a result would be inconsistent with the Separation of Powers and the rule of law.
The Jewel decision thus represents a nod to accountability that should take some of the sting out of the decision in Hepting. But unfortunately for the Jewel plaintiffs, additional obstacles remain. The panel forecast the difficulties that Ms. Jewel would face in proving her allegations of wiretapping — which the panel assumed to be true for purposes of resolving the government’s motion to dismiss — at the merits stage. And it expressly directed the district court to consider the government’s assertion of the state secrets privilege on remand. After these recent decisions, accountability is still an option in the Ninth Circuit, but it is by no means a certainty.