Constitution Check: Has the ACLU cleared a big hurdle to challenging secret spying?

NSAlogoLyle Denniston looks at two new lawsuits about government surveillance that may force federal courts to think more deeply as to just what kind of evidence can be considered in a national security case.

THE STATEMENTS AT ISSUE:

“In other lawsuits against national security policies, the government has often persuaded courts to dismiss them without ruling on the merits by arguing that litigation would reveal state secrets or that the plaintiffs could not prove they were personally affected and so lacked standing in court. This case may be different. The government has now declassified the existence of the program. And the A.C.L.U. is a customer of Verizon Business Network Services—the recipient of a leaked secret court order for all its domestic calling records—which it says gives it standing.”

– Charlie Savage, New York Times reporter, in a story June 12 about the American Civil Liberties Union’s new lawsuit in federal court challenging the government’s global electronic surveillance programs.

“ACLU attorneys working on today’s complaint said they do not expect the issue of standing to be a problem in this case because of the FISA Court order revealed last week.”

– Press release issued June 11 by the ACLU, describing one facet of its lawsuit in federal district court in New York City, filed under the case title, American Civil Liberties Union v. Clapper.

“It is hereby ordered that the custodian of records [of Verizon Business Services] shall produce to the National Security Agency (NSA) upon service of this order, and continue production on an ongoing daily basis thereafter for the duration of this order, unless otherwise ordered by the court, an electronic copy of the following tangible things: all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls. … This authorization expires on the 19th day of July, 2013…”

– Order signed by Roger Vinson, a judge of the U.S. Foreign Intelligence Surveillance Court, on April 25, in the text leaked to The Guardian newspaper and published by it on June 5.

WE CHECKED THE CONSTITUTION, AND…

It is a constitutional truism that nobody can sue the federal government unless there is a genuine legal controversy between an individual or an organization and the government. The controversy must be “live” in the sense that it actually exists, and is not merely hypothetical or imaginary or potential. This is a matter of basic federal court authority: If there is no such controversy, then a court has no power to decide it.

That is now enforced by a doctrine known as “standing,” or “standing to sue.” It is derived from the provision in the Constitution’s Article III that the American federal courts are to have power to decide “cases and controversies.”

The Supreme Court remarked in 2006 that “no principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” And it has said that one part of that limitation is that those who seek to sue “must establish that they have standing to sue.”

The court long ago translated that to mean that an individual or organization may sue in a federal court only if they could show three things at the outset: that they are or very soon will definitely be injured, in some legal sense, by what they claim the government is doing to them; that their injury can be traced directly to the government’s action; and that, if they ultimately win their case, the court will be able to give them an adequate remedy. (In legal shorthand, those are the requirements of injury, “causation,” and “redressability.”)

Now that the American public knows—from newspaper leaks and government officials’ public statements—quite a good deal about the government’s programs of secretly eavesdropping on a vast array of telephone and Internet communications, the American Civil Liberties Union has begun its latest challenge to the government’s authority to gather intelligence by such electronic spying. (Kentucky’s Republican Senator Rand Paul is preparing to file a similar court challenge.)

The ACLU is relying heavily upon Judge Vinson’s surveillance order, partially quoted above, to the National Security Agency as a basis for its right to sue, because the ACLU itself gets telephone service from the target of that order, the Verizon communications giant’s Business Services network.

As recently as last February (in a decision discussed on Constitution Daily earlier this week), the Supreme Court spelled out clearly what it will take to get into court to sue for spying on the scope that has just been revealed anew about the NSA’s operations.

The court’s main opinion in the case noted how high the “standing” hurdle could be in such a case. “We have often found a lack of standing,” it said, “in cases in which the Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs.”

On the threshold requirement of claiming injury, the court said, the claimed harm must be “concrete, particularized, and actual or imminent. … We have repeatedly reiterated that threatened injury must be certainly impending to constitute injury in fact and that allegations of possible future injury are not sufficient.”

In that specific case, the court found a lack of a right to sue by a group of attorneys and organizations representing media, legal, labor, and human rights advocates whose daily work required them to engage in international telephone and email communications. They could not show, the court ruled, that they actually were being injured by government eavesdropping and, even if they could, they could not show that it was traced to a specific government activity.

In the ACLU’s just-filed lawsuit, its attorneys clearly believe, it has gotten past both of those legal hurdles. It noted that government officials have “confirmed the authenticity” of Judge Vinson’s leaked order to Verizon, and it noted that the ACLU and its affiliated foundation “are current subscribers” of that very Verizon entity, and that other organizations joining in the lawsuit are prior Verizon subscribers.

As customers, the lawsuit argued, they “are covered by the now-public order” issued by Judge Vinson because the open-ended scope of that mandate reaches all customer records. That is sufficient, the ACLU insists, to show that their sometimes sensitive legal communications have been monitored, that they thus have been harmed, and that their harm is due directly to what Verizon has done under the judge’s order.

When a federal judge starts moving forward with this lawsuit, and the one to be filed shortly by Senator Paul, the judge will be testing whether the claims are based on mere supposition, or whether there is hard, factual evidence to support a claim of actual monitoring. That gets into the issue of whether the ACLU will be able to demand information from the government or from Verizon as to whose calls or emails have been monitored. And that will get into the government’s claim of secrecy for its monitoring operation.

At a minimum, these two new lawsuits may well challenge the federal courts to think more deeply as to just what kind of evidence is “concrete” enough and specific enough to show eavesdropping, and whether that kind of evidence can be probed without threatening national security secrecy.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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