Terrorism Trials: Military Commissions

Breaking: SCOTUS Decides Clapper v. Amnesty International

By Wells Bennett
Tuesday, February 26, 2013, 10:21 AM

The Supreme Court apparently concluded, in a 5-4 decision, that plaintiffs lack standing to challenge certain government surveillance programs.

Here's some background on the case; we'll post the opinion as soon as we get a copy.

UPDATE [11:25 a.m.]: here's the court's decision.  From the syllabus:

Held: Respondents do not have Article III standing. Pp. 8–24.

(a) To establish Article III standing, an injury must be “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Monsanto Co. v. Geertson Seed Farms, 561 U. S. ___, ___. “[T]hreatened injury must be ‘“certainly impending” ’ to constitute injury in fact,” and “[a]llegations of possible future injury” are not sufficient. Whitmore v. Arkansas, 495 U. S. 149, 158. Pp. 8–10.

(b) Respondents assert that they have suffered injury in fact that is fairly traceable to §1881a because there is an objectively reasonable likelihood that their communications with their foreign contacts will be intercepted under §1881a at some point. This argument fails. Initially, the Second Circuit’s “objectively reasonable likelihood” standard is inconsistent with this Court’s “threatened injury” requirement.Respondents’ standing theory also rests on a speculative chain of possibilities that does not establish that their potential injury is certainly impending or is fairly traceable to §1881a. First, it is highly speculative whether the Government will imminently target communications to which respondents are parties. Since respondents, as U. S. persons, cannot be targeted under §1881a, their theory necessarily rests on their assertion that their foreign contacts will be targeted. Yet they have no actual knowledge of the Government’s §1881a targeting practices. Second, even if respondents could demonstrate that the targeting of their foreign contacts is imminent,they can only speculate as to whether the Government will seek to use §1881a-authorized surveillance instead of one of the Government’s numerous other surveillance methods, which are not challenged here. Third, even if respondents could show that the Government will seek FISC authorization to target respondents’ foreign contacts under §1881a, they can only speculate as to whether the FISC will authorize the surveillance. This Court is reluctant to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment. See, e.g., Whitmore, supra, at 159–160. Fourth, even if the Government were to obtain the FISC’s approval to target respondents’ foreign contacts under §1881a, it is unclear whether the Government would succeed in acquiring those contacts’ communications. And fifth, even if the Government were to target respondents’ foreign contacts, respondents can only speculate as to whether their own communications with those contacts would be incidentally acquired. Pp. 10–15.

(c) Respondents’ alternative argument is also unpersuasive. They claim that they suffer ongoing injuries that are fairly traceable to§1881a because the risk of §1881a surveillance requires them to take costly and burdensome measures to protect the confidentiality of their communications. But respondents cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending. Because they do not face a threat of certainly impending interception under §1881a, their costs are simply the product of their fear of surveillance, which is insufficient to create standing. See Laird v. Tatum, 408 U. S. 1, 10–15. Accordingly, any ongoing injuries that respondents are suffering are not fairly traceable to §1881a. Pp. 16–20.

(d) Respondents’ remaining arguments are likewise unavailing. Contrary to their claim, their alleged injuries are not the same kinds of injuries that supported standing in cases such as Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, Meese v. Keene, 481 U. S. 465, and Monsanto, supra. And their suggestion that they should be held to have standing because otherwise the constitutionality of §1881a will never be adjudicated is both legally and factually incorrect. First, “ ‘[t]he assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.’ ” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 489. Second, the holding in this case by no means insulates §1881a from judicial review. Pp. 20–23.

638 F. 3d 118, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.