Why US courts also won't be saying much about national security surveillance

The answer can be found in the US Supreme Court’s decision in the case of Clapper v. Amnesty International USA (No. 11-1025, decided Feb. 26, 2013). The Court didn’t absolutely rule out judicial review of the expanded forms of surveillance authorized by the 2008 amendments to the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1881a, but it ruled that the case brought by the plaintiffs in Clapper could not be heard by the federal courts, and narrowed the chances of the courts’ involvement in the future as well. The reason: the plaintiffs, the people who brought the case, didn’t have “standing.”

"Standing" is the doctrine, currently understood as largely mandated by the constitution, that federal courts only hear cases brought by litigants who have something besides ideology at stake. That something is often summed up as the requirement that the plaintiffs must have suffered “injury in fact.”

The idea that only people who've actually suffered "injury in fact" should be able to sue has some real force. If you don't have anything personally at stake, maybe you're imagining disputes that the people actually involved have found better responses to. Meanwhile you're taking up the time of the courts, which have plenty to do, and perhaps provoking them to rulings that will turn out to be misguided when they're someday applied as precedents to people with real controversies. This desire for disputes with real stakes, litigated by the people whose stakes they are, isn't all of what underlies standing doctrine, but let's begin here.

Does the Supreme Court's recent decision that the plaintiffs in Clapper lacked standing fit this "real cases" concern?

We know that the Bush Administration created an electronic surveillance program outside the structures of the Foreign Intelligence Surveillance Act (FISA). After word of this program leaked, Congress ultimately gave the Administration new and broader statutory authority to carry out such surveillance. Under the new legal provisions, court orders (notably absent in the original Bush program) are required, but the Court explains that these orders can be granted without the same level of individualized proof as to the surveillance target and the same specification of the “facilities or places” to be surveilled as with other national security surveillance – and that in turn isn't exactly the same level of proof required for a regular search warrant under the Fourth Amendment.

This new statutory authority may be good or bad, essential or abusive. The one thing that seems inevitable is that a lot of foreign terrorism suspects will get surveilled under it. And from that proposition follows another: though surveillance under this program must be aimed at foreign terrorist suspects outside our borders, some of the people who will be overheard will be Americans talking to those foreigners. Those Americans have a right to be free of surveillance unless it complies with the constitution. It is doubtful whether non-citizens, outside our borders, have any constitutional protection against surveillance, though this point has not been definitively resolved by the Supreme Court. Americans inside the US certainly do have a constitutional right not to be subjected to improper surveillance, but to vindicate that right they have to be able to go to court.

That's the problem. The program's administration is secret, so in general no one is entitled to know that he or she is being surveilled. That means no one can sue.

Or rather it would mean this if the “injury in fact” requirement of US standing law meant that you had to have a proven actual injury in order to have standing. But that isn't the law, and for good reason. Suppose a factory discharges carcinogens into a lake. Will lake users get cancer? Some may, some years in the future. Right now, though, they're in good health; their only injury is the risk that they will later become ill. I'm not belittling that risk. Quite the opposite - that risk is enough injury for standing, as cases described by both the majority and dissent in this case appear to confirm.  

Relying on this theory, the plaintiffs in this case described why it was likely that their communications would get intercepted. For example, a lawyer representing a client charged with terrorism might need to communicate with the client's family and friends to try to build a defense - but some of these people might well be the subjects of surveillance (after all, they're the family and friends of an accused terrorist). So the plaintiffs argued that they themselves were at risk of being surveilled. They also said that they had already had to change their activities so as to reduce this risk because otherwise they could not do their own entirely lawful jobs (and those changes, involving expense and inconvenience, were themselves arguably injury).

A 5-4 majority of the Supreme Court found that the plaintiffs nevertheless lacked standing. In part the Court did so by asserting that when injury hasn’t yet taken place, the prospect of injury supplies standing only if it is “imminent,” meaning “certainly impending.” The majority has to acknowledge, however, that some of the Court’s past decisions phrase the standard not as one of “imminence” in this sense, but rather as a requirement of “substantial risk” – and the dissent elaborates this point in detail. Nevertheless the majority says that the plaintiffs haven’t even shown “substantial risk.” (Majority opinion, footnote 5.)

As a quantitative matter, that response seems hard to sustain. But the more important feature of the majority's argument may be qualitative: they say that in the risk cases, something has definitely happened (the carcinogens, for instance, have flown into the lake), and the issue is only what harm will ensue and when. Here, on the other hand, the plaintiffs cannot say that anything has happened to them - just that it's likely to happen. (Actually, one plaintiff said that the government in fact “had intercepted some 10,000 telephone calls and 20,000 email communications involving” a client he represented - I think this information had mistakenly been revealed by the government - but none of the justices place much weight on this particular feature.) According to the majority, the plaintiffs’ “attenuated chain of inferences” just doesn’t make the case.

Let's grant that to say X has happened and may bring harm is not the same as to say that X may happen and may bring harm (though the dissent suggests that in some past cases the Court in fact was satisfied with “X may happen” showings). These scenarios are different, but why does the difference matter? If we go back to the purposes I cited earlier for having a "standing" requirement - basically, to make sure only real issues are litigated, and only by people with a real stake - it seems to me these plaintiffs fit the bill. If their fears of surveillance were groundless or unreasonable, then we might call their lawsuit hypothetical - but I don’t think the majority ever says these fears are implausible.

Suppose, though, that the law does and should require that the plaintiffs prove they actually were being surveilled. That might make sense - except that, again, the program is secret. Could that problem be surmounted by having a court review surveillance records in camera (that is, in secret)? No, says the majority (in footnote 4 of its opinion), because any determination by the court that someone was being surveilled would inevitably amount to a national security breach. Catch-22. (There's also a depressing hint from the Court on this point, to the effect that lawyers might unlawfully disclose the court's findings to their clients. There have, in fact, been improper disclosures on occasion, but it is sad that the Court sees these cases as so polarized that it will not take for granted the integrity of the bar on this score as a general matter.)

At this point one might say that the court's application of standing law means that no one has standing to sue and therefore that the constitutional issues posed by this surveillance program will forever escape judicial examination. Not quite. In fact, there appear to be plenty of situations in which a court will at least to some extent consider these issues, because the government must get a court order from the Foreign Intelligence Surveillance Court to authorize its surveillance efforts. But that court meets in secret, obviously without any representation for the targets of the surveillance, let alone for the non-targeted US citizens who fear their communications will be caught within the net of the surveillance.

What about cases in the public courts of the land? These too can occur, but not often. One  occasion the Court foresees for such a challenge would be the prosecution of a person against whom the government wishes to use evidence derived from FISA surveillance. Even assuming that at this point someone could sue for unconstitutional surveillance, the problem is that this point is only reached if the government (a) prosecutes and (b) plans to use evidence derived from surveillance. Any surveillance not resulting in prosecution won’t make it to court this way. A second situation cited by the Court is the possibility that a telecommunications company, directed to assist in the surveillance process, will sue to challenge this obligation. That might happen (I think something like it may already have happened at least once), but it depends on the constitutional vigilance of the telecommunications company. With these limited exceptions, it appears there simply will be no way for US citizens who believe their communications have been unconstitutionally captured through this FISA surveillance to challenge that conduct in the courts. 

Is this restricted possibility of judicial review problematic? One way to answer this question is to simply put aside for now the exceptions to the bar on judicial review that we’ve just examined, and consider head-on the idea that no one affected by a law has standing to challenge its constitutionality. Surely that just has to be wrong? Well, perhaps it should be, but actually under our law it isn't. In fact it's well established that there may well be government actions that no one has standing to challenge in the courts. That's okay, the standard answer goes; the place to challenge these acts is in the political process.

Now we come to what I think is the heart of the matter. Standing doctrine is notoriously malleable, and a lot of what drives it is the judges' sense of what issues they want the courts to be involved in. I don't mean that judges duck the cases in which a ruling would injure their political preferences (judges appointed by a President of one party favoring that party, for example). That may happen on occasion, but I'm describing something more principled than that. The principle in question, however, isn't really that there must be someone with a real stake to litigate a case. The ambiguous doctrines surrounding that idea could have been read to validate the plaintiffs' reasonably perceived risk of injury as enough to entitle them to come to court. I think that the “real stake” requirement is best seen as a proxy for another concern that’s part of standing doctrine, one I haven't yet discussed.

The concern in question is the desire of courts not to intervene in decisions that ought to be made through the political process, notably including choices about national security. It's been felt since Marbury v. Madison established the Supreme Court’s power to rule on constitutional issues in 1803 that there are some issues that courts can't handle. For example, consider the question Americans faced in the run-up to World War II: should we go to war against Nazi Germany? Or this question from after we entered the war: should we first invade North Africa or France? Questions like these are immensely important, but they're not, we say, for the courts to make.

As you can see, the issue is no longer whether or not a dispute is hypothetical. Whether and how to fight a war are anything but hypothetical questions, and everyone in the country has a stake in them. The debate, rather, is over whether citizens should seek answers to those questions solely from the political system, or also from the courts. As a general matter, when the only stake litigants have is one they share with everyone else in the country – the interest in good governance, for instance, or the desire to have their tax dollars spent widely – US courts respond by saying that the suitors must seek their relief elsewhere.

It is quite possible to argue that US courts are too hesitant to rule on some issues. Our courts have intervened on some of the great issues of the war on terror, especially around detention without trial at Guantanamo and in the United States (though notably not in Afghanistan). They have also found other claims insufficiently pleaded, as in Ashcroft v. Iqbal, in which Iqbal challenged post-9/11 law enforcement which he said was based on race, religion or national origin, or beyond their power to hear, as in the distressing case brought by Maher Arar to challenge his "extraordinary rendition" to face torture abroad. Courts of some other countries – South Africa and Israel are examples – have been prepared to reach much further into the realms of government choices. I’m inclined to think our courts should go further, but there is a cost: if courts decide issues, then the people’s wishes on those matters, expressed through their choices of elected officials and those officials’ decisions, may get overridden. This isn’t a zero-sum game; sometimes the effect of judicial intervention is to strengthen democracy rather than to weaken it. But it’s a real concern: Platonic guardians may be wise, but they won’t be democratic – and they may turn out not even to be wise.

So what should tell us, in a case like this, whether to read standing doctrine to permit or to prohibit the case being heard? How do we tell when an issue is for the political system and when it’s right for the courts to resolve? I think the answer for the US – the surprisingly simple answer – is: the constitution. Broadly speaking, the constitution doesn’t guarantee us the right to go to court to seek wise public policy choices. The constitution is meant to establish a good and wise government, but its text doesn't give us a direct right to goodness and wisdom. What it gives us is a set of political structures, elections among them, that are meant to promote the chances of good governance.

But the constitution also gives us individual guarantees against some of the worst things a government can do. The list in the US constitution is shorter than in many modern constitutions, and we might be better governed if we had a longer list. We might even argue that the constitution should be understood to protect more than its text directly addresses. But what is in the text is important, and our constitutional text does include a protection against unreasonable search and seizure – the Fourth Amendment. Protecting explicitly listed individual rights like the right to be free of unreasonable searches, or the right to freedom of speech, is at the heart of the role of US courts. To find that these plaintiffs don't have standing means our courts can't effectively perform that role - and that means that the current Supreme Court majority’s account of the law of standing has cut into the core function of courts under our constitution.