The Supreme Court will hear argument Monday in a case designed to put some Bush-Obama terror-related surveillance policies on trial. Brought by Amnesty International and other public-interest groups, the challenge reflects post-9/11 anxiety about an out-of-control executive branch, and, even more, a fantasy that courts will do anything about it. They won’t, and that’s a good thing.
In 1978, Congress passed the Foreign Intelligence Surveillance Act, which attempted to regulate the president’s use of wiretapping for national security purposes. In order to conduct surveillance of a “foreign power” or its agents when their communications travel to or from the United States, federal officials would generally be required to obtain a warrant from the secret Foreign Intelligence Surveillance Court. In trying to cast a wide net, the Bush administration may have violated this statute, as Steve Vladeck suggests, since the law requires the government to specifically identify the surveillance targets. To address this problem, Congress in 2008 passed the FISA Amendments Act, which authorizes the U.S. government to engage in mass surveillance abroad. The government may not intentionally target Americans (at home or abroad), or foreigners in the United States, but the law does not prohibit spies from reading communications between lawful targets and Americans who are inadvertently swept into the net.
Amnesty argues that this provision of the 2008 amendments violates the Fourth Amendment, which protects people from unreasonable searches. Monday’s case, called Clapper v. Amnesty International, does not tackle this question. The trial court dismissed Amnesty’s complaint not for any reason involving the Fourth Amendment, but rather because Amnesty lacked standing to challenge the warrantless wiretapping at issue. The Court of Appeals overturned the trial court’s decision, and now the Supreme Court must decide whether Amnesty may bring this lawsuit.
Standing is a famously messy area of the law. Reduced to its essentials, it means that a plaintiff may sue a defendant only if the plaintiff has suffered an injury at the defendant’s hands. Suppose that the police beat you up. You have standing to sue and recover damages. But suppose that you do not sue because you fear police retaliation. Could a bystander, fired by indignation that the police will escape punishment, sue instead? The answer is no: The bystander lacks standing because he did not suffer any injury. His suit gets thrown out.
Standing doctrine is said to come from Article III of the Constitution, which provides that the judicial power extends to “cases” and “controversies,” but courts during the founding era employed a looser notion of standing than they do today (and indeed did not even use the word). Back then, people brought cases against lawless executive branch officials, and the Supreme Court didn’t object that they themselves had not been harmed. This began to change during the New Deal, when progressive justices thwarted challenges to FDR’s new agencies by denying standing to people who objected to them on ideological grounds. In the 1950s and 1960s, liberal justices reversed course and relaxed standing requirements, so that public interest groups could sue agencies and compel them to regulate properly. Then starting in the 1970s conservative justices started to tighten the rules for getting into court.
In a famous case decided in 1992, the Supreme Court rejected a lawsuit brought by environmental organizations that challenged the government’s failure to apply the Endangered Species Act to overseas projects financed by government agencies. The groups claimed that some of their members planned to go overseas and might not be able to observe endangered animals like the Nile crocodile if the statute were not applied abroad. The court shed crocodile tears but held that the animal-loving plaintiffs lacked standing because their injury was not “actual or imminent.” The court treated the environmental groups like the bystander, motivated by an ideological goal rather than the desire to obtain redress for a real harm they’d suffered. The case shows how the law of standing can prevent people from challenging government actions that may be illegal, but don’t directly affect them.
In Monday’s case, Amnesty argues that it has suffered a real injury—not because its employees know that spies have looked over their shoulders when they communicate with surveillance targets, but because the employees know that could happen. Amnesty says its people have had to curtail certain communications and take other precautions. The Obama administration accepts none of this: Amnesty has met with no injury and has no standing, the government’s lawyers say.
If the Court holds to its modern, skeptical view of standing, Amnesty will lose. This does not mean that there is no way the 2008 surveillance law can ever be challenged. If the government prosecutes a target using information obtained from surveillance, that person will be able to argue that the introduction of the evidence would violate his constitutional rights. However, if the government avoids bringing such cases, then people who are spied on will be out of luck. That is why Amnesty wants to get into court now.
Why has the Supreme Court restricted standing over the years? Many commentators blame conservative justices. But, as I mentioned earlier, progressive justices used standing to block challenges to the New Deal regulatory agencies. Standing doctrine is too crude for achieving ideological ends. If the justices say the Sierra Club lacks standing to challenge a weak environmental rule, then the NRA loses standing to shoot down a gun-control law.
The real explanation for the rise of standing doctrine is connected with the expansion of executive power, a bipartisan effort that goes back a century. Congress created regulatory agencies because courts can’t regulate modern problems like pollution, monopoly, and financial collapse. Congress placed the agencies in the executive branch under the leadership of the president, so someone can be held accountable when they go astray. It soon became clear that Congress could not make detailed rules for the executive branch to guide its actions, because of the complexity of the problems that its agencies were asked to tackle and the speed with which they changed. This proved even more true of foreign relations, where threats so rapidly emerge, recede, and metamorphose. Discretion became an essential feature of executive power.
The executive cannot exercise discretion, however, if courts, which move slowly and lack expertise, are constantly telling it what to do. The Supreme Court has made standing harder for plaintiffs to achieve so that people cannot enlist courts in schemes to block executive actions they disapprove of. The Obama administration is fine with this. The arc of the moral universe bends toward presidential power.
In other words, in spite of the fantasy that the courts can rein in the executive branch, that branch has gained power precisely because the courts as well as Congress realized that only a strong executive branch can battle the hobgoblins of the modern world. One of those hobgoblins is al-Qaida, and surveillance is the way to slay it. None of this means, though, that we the people lack recourse when the executive branch abuses its power. If you do not approve of government surveillance of foreign communications, or you think the law lends itself to abuse, then make your voice heard on Election Day.