Why Amnesty Will Lose at the Supreme Court

Eric Posner weighs in.
Oct. 26 2012 1:00 PM

Why Amnesty Should Lose at the Supreme Court

It’s not the job of judges to stop warrantless wiretapping.

A man using a cell phone.
The government may not intentionally target Americans, 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

Photograph by Thinkstock.

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.

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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.