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Peter Margulies on Clapper

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Wednesday, February 27, 2013 at 7:20 AM

Peter Margulies of Roger Williams School of Law writes in with the following comments on yesterday’s Clapper decision:

The Supreme Court’s decision Tuesday in Clapper v. Amnesty International reads at first like a substantial narrowing of standing doctrine.  However, closer examination reveals a more modest decision geared to courts’ institutional weaknesses in intelligence cases.  Justice Alito’s opinion for the Court also manifests a subtle distrust for ideological plaintiffs in national security cases, signaling skepticism about the challenge to the NDAA in Hedges (criticized by Ben here and more gently by Steve here ), whose lead plaintiff also figured in Clapper.

Clapper was a challenge to the FISA Amendments Act of 2008, which empowers the Foreign Intelligence Surveillance Court (FISC) to authorize surveillance without a showing of probable cause that the target of the surveillance is an agent of a foreign power.  The government need only demonstrate that the surveillance targets “persons reasonably believed to be located outside the United States” and seeks “foreign intelligence information.”  The statute, which enjoyed broad bipartisan support (including then-Senator Barack Obama), enhances the government’s statutory authority to conduct surveillance.  Nevertheless, there are strong arguments for its constitutionality, as my Con Law teacher, Gerard Lynch, noted in concurring in the Second Circuit’s 6-6 denial (with  five separate opinions) of en banc rehearing of a panel decision finding standing.  Judge Lynch acknowledged that a court pondering the merits would have to consider the government’s argument that the “necessity of protecting the nation’s security against very real and dangerous external threats” permits a “limited additional burden on a discrete category of international communications.”  Additional support comes from Justice Powell’s opinion for the Court in the 1972 Keith case, which invalidated domestic national security wiretapping ordered solely by the President but invited Congress to legislate in the area.

Generally, views on the merits should not drive a decision on standing, which instead turns on the plaintiff’s ability to show an injury attributable to the statute or action being challenged.  Courts require that a plaintiff demonstrate such concrete harm because of separation of powers concerns; while the political branches are free to take action based on policy preferences, the judiciary is a more constrained institution that lacks a license to kick every policy tire on the lot.    

In Clapper, the plaintiffs actually made a persuasive showing of harm on most measures, as Justice Breyer asserted in his dissent.  The plaintiffs alleged that they sustained greater inconvenience and higher costs because of the need to conduct secure communications with parties overseas whom the U.S. government had probably targeted for surveillance.  For example, Joanne Mariner, a human rights researcher who now works in London as Senior Crisis Response Adviser for Amnesty International, asserted that she regularly sought information on suspected terrorists allegedly rendered by the U.S. to foreign governments for purposes of interrogation, and had to take special steps to safeguard her efforts from governmental intrusion.   My college mate Chris Hedges, a former New York Times reporter who lent his name to the challenge to the NDAA now before the Second Circuit, stated that he had to incur similar costs to protect sources for his investigations of international human rights abuses.  Scott McKay, currently a lawyer for Khalid Shaikh Mohammed, contended that his efforts to contact relatives of his client and overseas witnesses entailed higher costs for the same reason.  Justice Breyer, ever the pragmatist, plausibly found “a very high likelihood” that the government would use its statutory authority to intercept some of these communications.  Breyer’s pragmatism contrasted with Justice Alito’s unconvincing description of the plaintiffs’ claims as speculative.

However, a deeper look at standing doctrine’s role in national security cases reveals a more pragmatic strand in Alito’s opinion.  As Bobby argued in his insightful article on National Security Fact Deference and Justice Alito noted in Clapper, adjudication has risks, particularly in the domain of “intelligence gathering and foreign affairs.”  Courts have limited fact-finding capabilities, compared with the resources available to the political branches.  In a variant of Heisenberg’s familiar uncertainty principle, judicial review in intelligence cases can skew the equities, prejudicing U.S. interests.  While Alan’s excellent post on Tuesday suggested that the FISC’s involvement has already placed courts in the middle of intelligence cases, the ex parte and limited nature of the FISC’s role does not raise comparable concerns.

Concern about the courts’ role grows when adjudication promotes strategic behavior by terrorist organizations.  As David Pozen argued in a fine paper, in any situation involving potential disclosure of national security information, the court may view even disclosure of seemingly innocuous information as building a “mosaic” of data that terrorists can exploit.  While David noted accurately that courts can exaggerate this concern, it still has currency in particular contexts.  Picking up on this point, footnote 4 of Alito’s opinion in Clapper warns that those costs include strategic behavior by a terrorist using a legal challenge to discover whether he is currently under surveillance.  Courts wouldn’t allow Tony Soprano to conduct a fishing expedition to determine whether the feds are tapping his phone; it seems odd to give foreign terrorists this capability.

Of course, not all surveillance targets are terrorists; false positives are always possible.  Moreover, lawyers for detainees at Guantanamo and elsewhere aim to ensure fair procedures, not aid terrorist violence.  Nevertheless, the concern about strategic behavior supports Justice Alito’s perception (shared by Orin Kerr here) that adversarial testing of the validity of surveillance can safely await the more cabined confines of a specific trial, where adjudication will not undermine the goals of surveillance.

A similar dynamic occurred in the First Amendment context in 2010’s Holder v. Humanitarian Law Project (full disclosure: I served as co-counsel with Brad Berenson on an amicus brief supporting the government in that case, which Bobby and Ben and others signed).  As I noted in a paper here, Chief Justice Roberts’s opinion upholding the federal material support statute cautioned that even ostensibly benign interactions with foreign terrorist organizations (FTOs) like Hamas could be more dangerous when terrorists’ strategic behavior entered the mix.  For example, Chief Justice Roberts explained, FTOs could tout their receipt of training on nonviolence to prospective donors, and then divert the additional funds for even more brutal attacks.  Courts, the Chief Justice suggested, had no reliable way of gauging FTOs’ sincerity or commitment to sound accounting principles.  The political branches were also at a disadvantage, since FTOs operated in foreign nations whose governments were often unwilling or unable to control them.  Deferring to the political branches’ regulation of the content and character of relationships with FTOs was therefore consistent with the First Amendment, as long as the material support statute did not prohibit aid to domestic groups and individuals had safe harbors for independently expressing their agreement with FTOs.

Concern about terrorists’ strategic behavior cannot be the sole determinant in national security cases.  Otherwise, checks and balances would evaporate, and the government could cash the “blank check” that Justice O’Connor rejected in Hamdi v. Rumsfeld.  However, judicial review should not ignore the reality that terrorists don’t play by the rules.  Clapper isn’t a massive rewrite of standing doctrine.  It merely tempers standing in surveillance cases with a pragmatic understanding of terrorist tradecraft.

Clapper also hints at a rocky reception for the challenge to the NDAA in Hedges.  If the Clapper plaintiffs couldn’t satisfy standing requirements, the Hedges plaintiffs may also have a difficult time.  Indeed, to support their claims about the risk of detention based on association, the Hedges plaintiffs rely on a reading of the NDAA that is far more strained than the arguments of the Clapper plaintiffs.  While Justice Alito’s analysis in Clapper did not expressly rely on the ideological motivations of the plaintiffs, the Justice did note that the plaintiffs’ challenge was filed on the very same day that the FISA Amendments Act was enacted.  At least the Clapper plaintiffs’ claims had a colorable nexus with their regular work.  That nexus is far more attenuated for the Hedges plaintiffs.  If Clapper foreshadows the final curtain for Hedges, it will have demonstrable value to readers of this blog anxious to grapple with the real issues of national security law.

UPDATE/CORRECTION: An earlier version of this post said that the Second Circuit had reheard the case en banc.  In fact, the court below had voted 6-6 with five separate opinions to deny rehearing en banc of a panel decision that found the plaintiffs had standing.  In Clapper, the Supreme Court reversed that panel decision. The post has been amended to reflect this correction.