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Why Clapper Matters: The Future of Programmatic Surveillance

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Tuesday, May 22, 2012 at 10:13 AM

In light of the Supreme Court’s grant of certiorari yesterday to review the Second Circuit’s decision in Clapper v. Amnesty International, I thought I’d put together a background post trying to explain why, in my view, Clapper is such an important case.  To be sure, the Justices are only being asked to decide a technical legal question, i.e., whether these plaintiffs have Article III standing to challenge the key provisions of the FISA Amendments Act of 2008. But as is often the case with standing, I think the Justices’ view of the merits may have a lot to say about whether or not they agree with the Second Circuit that this suit should be allowed to go forward. And so some discussion of the merits seems (for lack of a better word) warranted:

I.  FISA and the FISA Amendments Act

When it was enacted in 1978, the Foreign Intelligence Surveillance Act was designed to serve as a compromise–between individual privacy values enmeshed within the Fourth Amendment and the government’s need to be able to conduct clandestine foreign intelligence surveillance. Thus, although the Supreme Court had repeatedly held that search warrants could only issue upon a showing of individualized suspicion, one of the central moves of FISA was to shift the requisite burden: instead of demonstrating probable cause to believe that the surveillance will produce evidence of criminal activity (the ordinary standard for “Title III” warrants), FISA requires the government only to demonstrate probable cause to believe that the target of the surveillance is a foreign power or an agent thereof. In other words, “FISA warrants” are still predicated upon individualized suspicion, but suspicion to believe that the target is an agent of a foreign power, not that s/he is actively engaged in specific criminal activity. As a helpful CRS memo put it, FISA orders are based “upon the probability of a possibility; the probability to believe that the foreign target of the order may engage in spying, or the probability to believe that the American target of the order may engage in criminal spying activities.” Thus, whatever else might be said about FISA, this lesser probable cause requirement has been repeatedly upheld by lower courts [although never the Supreme Court] against Fourth Amendment challenges, largely because it still requires a particular form of individualized suspicion.

Although this is largely speculation, I think it’s widely believed that the individualized suspicion requirement is a big part of why the Bush Administration went around FISA (and the FISA Court) in conducting the Terrorist Surveillance Program (TSP).  After all, it’s difficult to reconcile programmatic surveillance (wherein the government intercepts all communications going through particular nodes) with the individualized suspicion and minimization requirements of FISA. And so when Congress stepped back into the fray, first in the Protect America Act of 2007, and then in the FISA Amendments Act of 2008, it was to provide statutory authority for such programmatic surveillance, as well.

The centerpiece of the FISA Amendments Act is new 50 U.S.C. § 1881a(a) (also known as “section 702(a)”), which provides that “the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” In other words, without having to seek the approval of the FISA Court (which merely reviews certifications to ensure that they–and not the surveillance itself–comply with the various statutory requirements), the AG and the DNI can engage in sweeping programmatic surveillance for one year at a time.

To be sure, the FISA Amendments Act includes a series of limitations on such sweeping authority, lest the government run roughshod over individual privacy interests. Thus,  50 U.S.C. § 1881a(b) provides that:

An acquisition authorized under subsection (a)–

(1) may not intentionally target any person known at the time of acquisition to be located in the United States;

(2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;

(3) may not intentionally target a United States person reasonably believed to be located outside the United States;

(4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and

(5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.

In other words, the programmatic surveillance cannot be designed to acquire communications within the United States or communications by U.S. persons outside the United States. But the statute says nothing about accidentally acquiring communications within the United States or by U.S. persons through overbreadth or overzealousness; it just bars intentional targeting of such communications. Thus, so long as the government isn’t intentionally trying to target U.S. persons or U.S. communications, the first four limitations won’t matter no matter how many of such communications are actually intercepted. Instead, the fifth limitation–the Fourth Amendment–is the key (and would’ve been even had the statute not expressly said so).

II.  The Fourth Amendment and the Foreign Intelligence Surveillance Exception

Yet even the Fourth Amendment may not be the constraint we’d expect… Thanks to the Supreme Court’s 1990 decision in Verdugo-Urquidez, non-citizens outside the United States are going to have a very hard time arguing that programmatic surveillance violates the Fourth Amendment as applied to their communications. But individuals within the United States, and U.S. citizens everywhere, are another matter. Thus, to the extent section 1881a(a) authorizes warrantless programmatic surveillance that intercepts communications within the United States or by U.S. citizens abroad, it seems inconsistent with the Fourth Amendment in general, and the Warrant Clause, in particular.

In 2008, the FISA Court of Review sidestepped this problem in its In re Directives decision, formally recognizing for the first time a “foreign intelligence surveillance” exception to the Fourth Amendment. Specifically, the court held that “a foreign intelligence exception to the Fourth Amendment’s warrant requirement exists when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States.” Just to be clear, such an exception dovetails perfectly with section 1881a(a), and, if sustained, would render the Fourth Amendment limitation on such surveillance entirely nugatory.

But it’s hardly a given that such an exception should be sustained given the consequences–i.e., massive and effectively unreviewable programmatic surveillance, including the almost certain widespread interception of U.S. communications. And this, finally, is where the Clapper litigation comes in. Decisions by the FISA Court of Review are not adversarial. As a result, it is exceedingly difficult (if not impossible) to challenge them directly (as the ACLU learned in trying to contest the Court of Review’s 2003 decision in In re Sealed Case, and in unsuccessfully trying to intervene in proceedings under the FISA Amendments Act). Thus, unless someone could challenge the existence of such an exception in some other judicial proceeding, it seemed likely that the limits on the government’s authority under section 1881a(a) would be entirely political.

Enter Amnesty International and the other plaintiffs in Clapper. At its core, the claim on the merits is that section 1881a(a) is unconstitutional to the extent it authorizes the government to obtain the plaintiffs’ international communications, both because it violates the Fourth Amendment and because it will have a chilling effect on the plaintiffs’ First Amendment speech rights. And resolving the Fourth Amendment claim necessarily turns on the existence (vel non) of the foreign intelligence surveillance exception recognized by the FISA Court of Review in In re Directives.  In other words, for better or worse, the central merits issue in Clapper is whether there will be a foreign intelligence surveillance exception going forward. If courts reach the merits, and disagree with the FISA Court of Review over the existence of such an exception, then the Fourth Amendment could indeed become a significant constraint on the scope of section 1881a(a)–and the future of programmatic (as opposed to individualized) foreign intelligence surveillance.

III.  Article III Standing in Clapper

Thus far, of course, the lower courts haven’t gotten to the merits in Clapper. The district court granted summary judgment to the government based on the plaintiffs’ lack of standing, and a unanimous panel of the Second Circuit reversed. As Judge Lynch explained, “Because standing may be based on a reasonable fear of future injury and costs incurred to avoid that injury, and the plaintiffs have established that they have a reasonable fear of injury and have incurred costs to avoid it, we agree that they have standing.” There’s more to say about the substance of the Court of Appeals’ standing analysis (with which I largely agree), although I’ll save that for later. For now, let me just note that, as I’ve suggested before, there is here (unlike in the ACLU v. NSA case, in which the Sixth Circuit rejected standing in a challenge to the TSP) “a specific (and public) statutory authorization for surveillance that necessarily gives some fairly strong clues (to both private parties and the courts) as to how those whom the statute bars the government from targeting could nevertheless end up having their communications intercepted.” Indeed, as we noted last week in our discussions of the Hedges case, one can hardly blame courts for finding standing when the government refuses to concede that it will not undertake the measures to which plaintiffs fear they may be subjected.

But at a more fundamental level, there’s one more point worth making: Readers are likely familiar with Alex Bickel’s Passive Virtues, and his thesis that, especially on such sensitive questions where constitutional rights intersect with national security, courts might do best to rely on justiciability doctrines to duck the issue–and to thereby avoid passing upon the merits one way or the other. [Think Joshua at the end of WarGames: "The only winning move is not to play."] And at first blush, this looks like the perfect case for Bickel’s thesis, given the implications in either direction on the merits: recognizing a foreign intelligence surveillance exception and thereby endorsing such sweeping, warrantless interceptions of previously protected communications vs. removing this particular club from the government’s bag…

And yet, the foreign intelligence surveillance exception only exists because it has already been recognized by a circuit-level federal court, to wit, the FISA Court of Review. Whether the passive virtues might otherwise justify judicial sidestepping in such a contentious case, the fact of the matter is that this is a problem largely (albeit not entirely, thanks to the FISA Amendments Act) of the courts‘ making. To duck at this stage would be to let the FISA Court of Review–the judges of which are selected by the Chief Justice–have the last word on such a momentous question of constitutional law. In my view, at least, that would be unfortunate, and it’s certainly not what Bickel meant…

[Update: I have more analysis (and a few clarifications) in this subsequent post.]