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.)
All Related Posts (on one page) | Some Related Posts:
- NY Times article on NSA wiretapping quotes bloggers.--
- Should We Care About The Reasoning In Judge Taylor's Opinion? :
- Hardly a "Hard-Left" Position:...
- Lower Court Opinions Are Briefs to Higher Courts:
- The NSA Eavesdropping Opinion and Standing:
- The Fourth Amendment and the NSA Domestic Surveillance Opinion:...
- The NSA Eavesdropping Opinion and the First Amendment:
- The NSA Eavesdropping Opinion and the Fourth Amendment:
- Federal District Court Decision Striking Down NSA Eavesdropping Program,
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.
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.
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.
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.
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).
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).
If they don't take that approach though, I think they are going to be in real trouble.
Therefore, go with Jon Benet.
Says the "Dog"
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?
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.
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:
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.
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.
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.
Consider chilling effect on freedom of association as well as freedom of expression.
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.