The constitutionality of an amended national security wiretapping law has triggered a sharp split at the U.S. Court of Appeals for the Second Circuit.
In a decision that sets up a trip to the U.S. Supreme Court, the Second Circuit by the narrowest of margins voted yesterday to deny hearing en banc a decision recognizing that lawyers, journalists and human rights groups have standing to challenge amendments to the Foreign Intelligence Surveillance Act (FISA) because they fear their conversations are being, or will be, intercepted by the U.S. government.
With a majority of the full panel of active judges needed to win rehearing, judges in favor of en banc review fell one vote short, with the panel splitting 6-6.
Judges Debra Ann Livingston, Dennis Jacobs, Jose Cabranes, Reena Raggi and Richard Wesley dissented, delivering or joining in three opinions arguing that the full court should rehear the case. The sixth vote came from Judge Peter Hall, who did not join the other dissenting opinions but said he believed en banc review was merited because the case involved a question of "exceptional importance."
The plaintiffs' facial challenge to the statute should be rejected because they cannot be targeted under the statute, the dissenters said, and they charged the original panel that issued its decision in March in Amnesty International United States v. Clapper, 09-4112-cv, had turned the standard for standing on its head.
Judge Gerard Lynch issued the lone opinion defending the denial of rehearing. He first agreed that the case met the "exceptional importance" standard and acknowledged that the original opinion "may be in tension" with those of other circuits.
"But I dispute the dissenters assertions that Amnesty somehow distorts the law of standing, or, in Judge Livingston's words, 'threatens a sub silentio transformation of this Circuit's case law,'" he said.
Judge Lynch was on the original panel that decided the case last spring (NYLJ, March 22) along with Senior Judges Robert Sack and Guido Calabresi. That decision reversed Southern District Judge John Koeltl, who had ruled in 2009 that the plaintiffs lacked standing (NYLJ, Aug. 21, 2009).
The other active judges on the circuit who joined Judge Lynch in denying rehearing are Rosemary Pooler, Robert Katzmann, Denny Chin, Raymond Lohier and Susan Carney.
Judge Lynch said the original opinion spoke for itself and he was writing only to respond to points raised by the dissent.
In March, the panel said lawyers, journalists, human rights groups, labor groups and others could challenge §702 of FISA, 50 U.S.C. §1881a, a provision that was added in the FISA Amendments Act of 2008 (FAA) and set new procedures for electronic surveillance of non-U.S. citizens abroad.
It allows the executive branch to apply to the Foreign Intelligence Surveillance Court for mass surveillance authorization instead of making an individualized application focused on specific targets or facilities, requiring only a certification that "a significant purpose of the acquisition is to obtain foreign intelligence information" and that the information will be obtained "from or with the assistance of an electronic communication service provider."
Plaintiffs argue the statute's provisions for "targeting" to ensure authorization is limited to people outside the United States and "minimization procedures" designed to ensure compliance with the Fourth Amendment are inadequate.
Jameel Jaffer of the American Civil Liberties Union argued before the Second Circuit in 2010 that the new monitoring regime had a chilling effect on the plaintiffs' speech, as the fear of having their conversations with their clients taped forced them to take steps, such as traveling, to avoid being overheard by the U.S. government (NYLJ, April 19, 2010).
Douglas Letter, an appellate litigation counsel with the U.S. Department of Justice, argued that plaintiffs had no standing because the contended injury to them was too speculative.
In March, the three-judge panel said the plaintiffs had alleged a "reasonable fear of future injury and costs incurred to avoid that injury."
'Unprecedented' Rule
Yesterday, Judge Raggi issued a 40-page dissent to the denial of en banc review, joined in by all of the dissenters save Judge Hall.
She said the March panel found standing "even though plaintiffs cannot be targeted for surveillance under that statute, cannot demonstrate actual or imminent interception of any of their communications, and may in fact never experience such interception."
She added, "A rule that allows a plaintiff to establish standing simply by incurring costs in response to a not-irrational fear of challenged conduct is unprecedented. On that theory, every mobster's girlfriend who pays for a cab to meet with him in person rather than converse by telephone would be acting on a not-irrational fear of a Title III interception, and, therefore, have standing to challenge."
The Supreme Court, she said, has held "that subjective fear of challenged government conduct is insufficient to support standing, and that forbearance action can only do so when a plaintiff would otherwise certainly be subject to the challenged conduct."
Judge Livingston, joined by the same four judges, said the March panel threatened to upset case law regarding "'probabilistic harm' meaning the narrow circumstances in which this court has recognized injury in fact to exist based on the risk of some future harm."
The panel, she said, "did not explain its disregard of the Supreme Court's requirement that injury must be actual or imminently threatened," expressed in Summers v. Earth Island Inst., 555 U.S. 488 (2009).
Judge Jacobs, speaking for himself, said the plaintiffs' averments on harm "seem to me inadequate, implausible, and illusory."
He said it was a "defect" in the panel opinion to avoid even a glance at merits review that is needed to determine a Fourth Amendment violation.
Such a review, he said, "refutes harm and redressability, and should therefore have defeated standing."
The judge took aim at the "supposed anxieties" of the plaintiffs.
Of those plaintiffs who submitted affidavits, Judge Jacobs said, only two were lawyers who represent clients: Scott McKay and Sylvia Royce, who represent Guantánamo detainees. But Mr. McKay did not specify a single trip he took to avoid monitoring and Ms. Royce took only one trip—to New York to meet another lawyer for a conversation she could have had by phone, Judge Jacobs said, a call that would not have been subject to the act.
In closing, Judge Raggi took issue with Judge Lynch's statement that denying standing would "close" courthouse doors.
"Rather, it is our remaining colleagues who decline to consider whether a questionable standing standard should become the law of this circuit," she said. "There is, however, another courthouse, and those of us here in dissent can only hope that its doors will be opened for further discussion of this case."
In his opinion, Judge Lynch took issue with the "theme that runs through all the dissents"—that the panel should have been more skeptical about the plaintiffs' averments.
He said the case came to the panel on summary judgment, where a court must take the allegations as true.
He agreed that, where subject matter jurisdiction is at issue, there was an independent obligation to question even undisputed facts.
"Certainly, parties cannot confer jurisdiction on the court by stipulating to facts that are false," Judge Lynch said. "But this is hardly an example of collusive stipulation to facts that, as Chief Judge Jacobs would have it, are fanciful," he said, adding that the reasons for plaintiffs' belief that their "communications are likely to be intercepted by the government" under the amended act "are anything but implausible."
Broadened Risk
Judge Lynch continued, "As the panel opinion explains, the FAA indisputably and significantly broadens the risk of interception, lowers the government's probable-cause burden, and decreases the oversight role of the Foreign Intelligence Surveillance Court."
Before, he said, the Foreign Intelligence Surveillance Court would issue a warrant only if it saw probable cause that the target was a foreign power or its agent and that the target was using or about to use the facility to be monitored. The court, he said, "had to find probable cause for each specific search, and maintained a continuing oversight role after each probable cause determination."
But no longer, he said. Under the current administration, the FISA court does not monitor the "targeting" and "minimization" procedures—that is left to the attorney general, the Director of National Intelligence and the Senate and House Judiciary committees.
Judge Lynch said that, contrary to the dissents, the panel's opinion did anything but muddle the well-established requirements of "injury in fact, causation and redressability."
He said the dissents "seem to misunderstand our injury analysis," as the panel had addressed both present and future injury.
Despite Judge Jacobs emphasis on two lawyers, he said the panel made it "abundantly clear" that it went beyond lawyers and found "all of the plaintiffs incurred professional and economic costs in order to protect clients or sources."
Judge Lynch said it was "hard to take seriously" the dissents' charge that the plaintiffs' assertion their overseas contacts are likely to be government targets was "speculative."
"As the opinion explains, the plaintiffs overseas contacts include, for example, alleged al Qaida members (and Guantánamo detainees) Khalid Sheik Mohammed and Mohammedou Ould Salahi, as well as those men's families," he wrote.
Judge Lynch said the plaintiffs faced "a difficult road" in proving that the law violates the Fourth Amendment in the face of the "paramount necessity of protecting the nation' security against very real and dangerous external threats." But the argument should be heard in open court, he said.
"To reject the plaintiffs' arguments not because they lack merit, but because we refuse to hear them, runs a much graver risk than whatever invasion of plaintiffs' privacy might be occasioned by the surveillance authorized by the challenged statute," he said
@|Mark Hamblett can be contacted at mhamblett@alm.com.
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