pageok
pageok
pageok
The NSA Eavesdropping Opinion and Standing:

The district court held that the plaintiffs had standing to challenge the warrantless NSA surveillance program. The plaintiffs are individuals and associations whose members "conducted regular international and telephone and internet communications for various uncontestedly legitimate reasons including journalism, the practice of law, and scholarship." They asserted a "well founded belief" that they had been subjected to warrantless surveillance and that the existence of the program had actually "chilled" their communications with persons overseas. None of the plaintiffs alleged, however, that they had actually been surveilled under the NSA program.

The Supreme Court has held that, to establish standing, the plaintiffs must allege an injury that is concrete and particularized, not hypothetical and conjectural. Cases in the past decade or so have shown that this doctrine is quite flexible, allowing the Court to sidestep difficult or particularly sensitive constitutional questions where there's even a doubt about whether the standing threshold has been met. An example of this technical maneuver to avoid consideration of a thorny constitutional issue is the Supreme Court's recent decision to reject a non-custodial atheist father's claim that it is unconstitutional for public schools to lead children in reciting the phrase "under God" in the Pledge of Allegiance. Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1 (2004) (dismissing claim on the ground that the father lacked standing). Justice Stevens's majority opinion declared: "The command to guard zealously and exercise rarely our power to make constitutional pro-nouncements requires strictest adherence when matters of great national significance are at stake." Id. at 11 (emphasis added).

The district court nevertheless thought the plaintiffs had met this standard because the "chilling" effect from the very existence of the program was clear. The court then cited cases in which plaintiffs had adequately alleged chilling and other effects from the operation of federal laws. The problem is that, in each case, there was no question that the plaintiffs had actually been subjected to the regulation in question, not simply whether they might be. Once the application was clear, a chilling effect surely suffices as a sufficiently concrete injury. But the predicate is not clearly met in this case.

I am one of those who believes that the NSA program is not authorized by the AUMF, that it violates FISA, that FISA is a constitutional exercise of congressional power, and that therefore the NSA program is both illegal and unconstitutional. I have written so here. But I am less sure this is an issue courts should review, and even less sure that this case is one they should review.

So while the much sexier questions of executive power, the First Amendment, and the Fourth Amendment, will no doubt occupy many of us over the coming months (as they already have), I'd be willing to bet that at either the appellate court or the Supreme Court the suit will be dismissed for lack of standing.

(Meanwhile, with all this going on, ABC led its evening news with the latest from the Jon Benet Ramsey case.)

Bruce Hayden (mail) (www):
I agree. It is the simplest way out, and it avoids having to truly determine a lot of very hard questions. I should add that it sure seemed like the plaintiffs admitted that the people who no longer would talk to them electronically were terrorists, members of terrorist organizations, etc. (see bottom of page 17)
Plaintiffs have submitted several declarations to that effect. For example, scholars and journalists such as plaintiffs Tara McKelvey, Larry Diamond, and Barnett Rubin indicate that they must conduct extensive research in the Middle East, Africa, and Asia, and must communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations.12 In addition, attorneys Nancy Hollander, William Swor, Joshua Dratel, Mohammed Abdrabboh, and Nabih Ayad indicate that they must also communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations,13 and must discuss confidential information over the phone and email with their international clients.14 All of the Plaintiffs contend that the TSP has caused clients, witnesses and sources to discontinue their communications with plaintiffs out of fear that their communications will be intercepted.15
8.17.2006 8:39pm
PatHMV (mail) (www):
Just from the reviews of the case I've read, it sounds to me like the reason for upholding the First Amendment claim was to find a way to give standing. As far as I'm aware, there is no "chilling effect" analysis in Fourth Amendment jurisprudence, so the only way these plaintiffs could possibly show standing, absent any evidence whatsoever that their own calls were tapped, would be by piggy-backing a First Amendment claim on top of the Fourth Amendment claim.
8.17.2006 8:45pm
Medis:
I remain unconvinced that there are any truly "difficult" constitutional questions in this case, particularly not after Hamdan. And I think it is obvious that this doctrine should not be triggered simply because the government asserts a constitutional argument, regardless of its actual merit. Indeed, I thought the CRS memo did a good job explaining why this doctrine should be inapplicable to this case.

That doesn't specifically address, of course, whether these particular plaintiffs have standing. But I see no reason to place a thumb on that scale.
8.17.2006 9:12pm
Lior:
Prof. Carpenter: Is it really the case that the Executive is free to violate federal law as long as they also refuse to disclose to citizens whether the violation affected them personally?

When one branch is exceeding its authority depsite checks from another [here, the Executive ignoring laws properly enacted by Congress] surely the third branch would step in to remedy the situation?

Haven't US Courts developed some kind of standing that is appropriate for such situations? Israeli courts have given various advocacy groups standing to sue in similar cases; US analogues include the ACLU.
8.17.2006 10:23pm
Richard Bellamy (mail):
I think implicit in any examination of standing is a Platonic ideal of the "Perfect Plaintiff." In Newdow, it would have been a person forced to say the Pledge against her will. Michael Newdow did not look very much like that person.

In this case, however, it is difficult to imagine who the "more perfect" Plaintiff would be. You state "None of the plaintiffs alleged, however, that they had actually been surveilled under the NSA program." and " am less sure this is an issue courts should review, and even less sure that this case is one they should review."

This implies a hypothetical Perfect Plaintiff whom I think just does not exist. Part of the issue is that NO ONE will be able to allege that they were surveilled. How would they know?

Also worth considering is what PatHMV alludes to above, but I'm not sure if he gets it quite right. "Standing", we all understand, comes first. Can one have standing because you properly allege a "chilling effect", bring a First and Fourth Amendment claim, and then only win on the Fourth Amendment claim? Or does losing the claim which granted you standing retroactively revoke your standing for the Fourth Amendment claim? It seems to me that if you have "standing" to challenge a law, you have standing to challenge it with whatever legal theory you can think of, but it seems odd that the "hook" for standing could come from a claim that was ultimately incorrect.
8.17.2006 10:43pm
Medis:
Richard,

Of course that happens all the time--basically, any time the plaintiffs lose on the merits for all of their claims, their standing must have been based on an unmeritorious claim.
8.17.2006 10:51pm
Antares79:
I agree with Dale that the standing issue truly is provacative, perhaps moreso than the privacy merits in this case. I also agree that the injury suffered in this case is not the actual, particularized injury required by several SCOTUS cases.

However, I don't think a court will dismiss for lack of standing. Like Richard says, there really are no better plaintiffs in this case. It is not a far hop from <i>Laidlaw</i> to find standing for plaintiffs who refrain from otherwise legal activity due to a reasonable fear of damages, even if they are only aesthetic interests in the environment (or, here, the government's invasion of privacy rights).

Of course, the Court does occasionally bend its standing rules to reach or deny merits when it so desires ("capable of repetition, but evading judicial review" vs. Newdow).
8.17.2006 11:38pm
Antares79:
I agree with Dale that the standing issue truly is provacative, perhaps moreso than the privacy merits in this case. I also agree that the injury suffered in this case is not the actual, particularized injury required by several SCOTUS cases.

However, I don't think a court will dismiss for lack of standing. Like Richard says, there really are no better plaintiffs in this case. It is not a far hop from Laidlaw to find standing for plaintiffs who refrain from otherwise legal activity due to a reasonable fear of damages, even if they are only aesthetic interests in the environment (or, here, the government's invasion of privacy rights).

Of course, the Court does occasionally bend its standing rules to reach or deny merits when it so desires ("capable of repetition, but evading judicial review" vs. Newdow).
8.17.2006 11:39pm
John Lederer (mail):
I know that were I counsel for the plaintiffs I would not look forward to walking the delicate line before the Court of Appeals of saying "Yes, the Distict court opinion errs on a number of points. Nonetheless we should be upheld on appeal because...".

If they don't take that approach though, I think they are going to be in real trouble.
8.17.2006 11:51pm
Orestes:
I don't think there is standing here. The court expends great effort to show that these plaintiffs--journalists, researchers, etc. in America who wish to get information from sources abroad--suffered an injury because their sources were chilled by the surveillance and thus would not communicate via phone with the American plaintiffs. Under the test for standing, however, a plaintiff does not just need to show injury; he also needs to demonstrate that the injury derived from an "invasion of a legally protected interest." Op. at 16. The court finds a First Amendment violation because the speech of the overseas non-plaintiffs is being chilled, thus causing injury to the American plaintiffs. But the court does not explain how these plaintiffs' rights were violated by this chilling, even if it injured them. It's important to note that these plaintiffs are not alleging that they are refraining from speech because they're being surveilled; instead, they allege that others are refraining from speech in fear of surveillance, thus injuring the plaintiffs. I know of no First Amendment right, however, to have others be willing to talk to you free from government chill. And the court did not even try to demonstrate one.
8.18.2006 12:02am
JunkYardLawDog (mail):
It seems that even most lefty journalists are so aghast at how poorly written and reasoned was this opinion that even they believe it will be quickly undone, and they can't bring themselves to try and explain in 2 minutes the meaning and terms of this opinion which the Judge herself could not explain in any rational manner.

Therefore, go with Jon Benet.

Says the "Dog"
8.18.2006 12:22am
Christopher Cooke (mail):
I do agree that standing could be a big problem. But, here is what I would do if I were the plaintiffs. I would send a set of interrogatories to the government requiring the government to identify if any of the plaintiffs' communications were the subject of the NSA program. I imagine the judge would order the government to answer and not agree to stay the order pending appeal. And, if the discovery order were not stayed by the appellate court, you would have your answer as to whether any of the plaintiffs does have an "injury in fact" to raise the 4th Amendment issue. Maybe the plaintiffs don't want to know, but they can always fall back on the 1st amendment "chilling" argument to show standing. And, if none of them were subject to the NSA surveillance, I think none has standing and the Court of Appeal is likely to so conclude.
8.18.2006 1:12am
Dave Hardy (mail) (www):
As a government attorney, we used standing as our first line of defense. As someone who has enjoyed suing the government ever since, I've studied it as the first barrier.

It is my opinion, based on these decades of experience, that caselaw on standing makes little sense except to the extent it allows a court to dump a case it would rather not hear.

I mean (1) as a general proposition, a plaintiff has no standing to challenge a statute that makes his intended action a strict-liability felony, just because he modifies his behavior to avoid the risk of jail time, but (2) a wildlife watcher has standing to challenge a statute because it may, just may, reduce in some indeterminable degree the pleasure they obtain from watching wildlife?
8.18.2006 1:21am
Richard Aubrey (mail):
The administration claims it only listens to calls which have, at one end, a number found on a terrorist rolodex, or some version thereof.
The plaintiffs claim this restricts their activities.
Well, yeah, I should hope.

The plaintiffs are scholars, journalists, and attorneys, all categories on the bottom of the public sympathy list. Add to this their claim to be allowed to talk to terrorists without any government monitoring, and I don't think the plaintiffs would want to see this go to criminal law and thence to a jury trial.
8.18.2006 1:29am
therut:
Some Judge gives these pople standing without any fact that they have been harmed but none will give a citizen in DC standing aganist it's draconion gun laws because they have not been arrested YET!!!!!!!!!!! No wonder Judges have little respect.
8.18.2006 2:34am
Anonymous987:
Dale lists part of the Constitutional requirements for Article III
standing -- the plaintiff must have suffered an injury in fact that is
concrete and particularized, etc. See, e.g., Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. 528 U.S. 167, 180-1 (2000)
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992)).

But the Newdow case wasn't about Article III standing at
all. The Court left open Newdow's claim (and the lower court's
finding) that he had Article III standing. Instead, the Court found
that he lacked prudential standing. As the Court explained:


[O]ur standing jurisprudence contains two strands: Article III
standing, which enforces the Constitution's case or controversy
requirement, and prudential standing, which embodies 'judicially
self-imposed limits on the exercise of federal jurisdiction.' The
Article III limitations are familiar: The plaintiff must show that the
conduct of which he complains has caused him to suffer an 'injury in
fact' that a favorable judgment will redress. Although we have not
exhaustively defined the prudential dimensions of the standing
doctrine, we have explained that prudential standing encompasses 'the
general prohibition on a litigant's raising another person's legal
rights, the rule barring adjudication of generalized grievances more
appropriately addressed in the representative branches, and the
requirement that a plaintiff's complaint fall within the zone of
interests protected by the law invoked.' [...] Even if [Newdow's]
arguments suffice to establish Article III standing, they do not
respond to our prudential concerns.


Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11-12, 18 (2004)
(citations omitted).

Thus, while the Court's jurisprudence on Article III standing (the
rules Dale discussed) may indeed be "quite flexible," Newdow
cannot be the case to stand for that proposition.
8.18.2006 5:56am
Bruce Hayden (mail) (www):
I don't think that the plaintiffs get away with asking whether they were surveiled. As noted above, Standing is usually the first hurdle that the government utilizes in defending itself. But in this case, the State Secret privilege was the first line of defense, and the judge slid around it, by basing her decision on what was publically known about the TSP. That she didn't seem able to reject it outright somehow is, I think significant. So, asking whether any of the plaintiffs were surveiled would reopen this issue, which I don't think that they really want.

Think of how brazen the argument in favor of standing is here. The judge is essentially saying that chilling of speech of people not protected by the U.S. Constitution is sufficient for standing, because it indirectly chills speech between the plaintiffs and these people. But secondly, those not protected by such who had their speech chilled are avowed and identified enemies of this country in a time of war (and limiting it to this group is IMHO essential in sliding around the State Secret privilege - because the government admits surveiling just such people).

Yes, the appeals courts could address every one of Judge Taylors determinations, one by one, or they can take the easy way out, by, for example, just say, no, the plaintiffs don't have a reasonable expectation of being able to freely communicate with our identified enemies in a time of war.
8.18.2006 11:14am
Dale Carpenter (mail):
Anonymous is right that the Court formally divides its standing doctrine into two halves, constitutional and "prudential" requirments, and that Newdow was decided on the prudential half. I elided that distinction in the post as it was my aim to discuss standing generally. In fact, both halves of the standing doctrine are flexible and should be relevant to the Sixth Circuit's consideration of the issue. Newdow is Exhibit A in any such discussion.
8.18.2006 11:29am
Just an Observer:
Bruce Hayden,

Your rhetoric about "avowed and identified enemies of this country in a time of war," and "our identified enemies in a time of war," while politically appealling, simply does not match the overly broad and vague criteria the administration says it uses as the threshhold for surveillance -- without independent review by a judge.

The publicly stateed criteria used in the NSA program, according to Judge Taylor's analysis, is that "the
government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda."

"Affiliated?" "Working in support of?" What the heck does that mean? Such language does not support your own colorful rhetoric.

More to the point legally, it is nowhere near the more rigorous FISA definition of "probable cause" that the person is an "agent of a foreign power," which in turn requires that then person "knowingly" perform one or more specifically enumerated bad acts.

As I understand the plaintiffs' theory of standing, it depends on is this: They and their legitimate communicants can be confident that they are not foreign agents within the FISA definition, but reasonably might expect to be swept up in the NSA's loosely defined dragnet.
8.18.2006 11:55am
Christopher Cooke (mail):
I would still test the government on the state secret's privilege, and send it a set of interrogatories, even if the government will likely refuse to answer them. Here is why: it makes the government's lack of standing argument to appear truly Orwellian. The government says, on the one hand, the plaintiffs have no standing, but, on the other hand, won't say if they have in fact been surveilled, which would give the plaintiffs standing.
8.18.2006 2:14pm
Hamilton Lovecraft (mail):
The court finds a First Amendment violation because the speech of the overseas non-plaintiffs is being chilled, thus causing injury to the American plaintiffs. But the court does not explain how these plaintiffs' rights were violated by this chilling, even if it injured them. It's important to note that these plaintiffs are not alleging that they are refraining from speech because they're being surveilled; instead, they allege that others are refraining from speech in fear of surveillance, thus injuring the plaintiffs.

Consider chilling effect on freedom of association as well as freedom of expression.
8.18.2006 3:16pm
Orestes:
Hamilton Lovecraft,

I thought about freedom of association, and, in short, I'm not in a good position to evaluate the strength of that argument because the judge never bothered to set out her legal basis for finding that an adequate First Amendment violation was alleged. If you offer (or the judge would have offered) some precedents on this issue, I'd be happy to consider them. Until then, I'll just say that from a practical standpoint, I have a hard time seeing how the government's silencing the speech of one person (whether directly by jailing that person, or indirectly by merely "chilling" his speech) gives rise to a First Amendment claim on behalf of everyone who can plausibly say he would have liked to have spoken with, listened to, or associated with the first person. If the cops arrest a sidewalk preacher for disturbing the peace or some similar violation, can it really be the case that anyone who might have liked to hear what the guy had to say--perhaps even interact with him a little--has a First Amendment claim of his own? Are there cases countenancing this?

On another practical note, consider this: The reason the plaintiffs here did not assert that their First Amendment rights were violated because they themselves were chilled in speaking by the surveillance program was because this argument was directly foreclosed by the Supreme Court's decision in Laird--which said that being chilled in speaking by the mere fear that you were being surveilled was an injury too speculative to bestow standing on a plaintiff. And yet now, we're allowing plaintiffs who aren't themselves being chilled to assert a First Amendment claim in their own right based on the speculative fears of non-plaintiffs! In other words, this is an even weaker case for standing than Laird was.
8.18.2006 5:53pm