Dissent Blasts Plaintiff Lawyers in Wiretapping case

The Second Circuit recently declined to review en banc a decision by a three-judge panel, and in the process, generated an unusually heated debate.  The issue in the case was standing, but the intensity of the judges’ disagreement is likely a reflection of the sensitive nature of the plaintiffs’ claims.

The Court split 6-6 on whether to review a case involving the federal government’s wiretapping program.  The plaintiffs allege that the FISA Amendments Act of 2008 (FAA) is facially unconstitutional because it violates the Fourth Amendment.  Congress passed the FAA to update the executive branch’s procedure to obtain authorization for wiretapping from the Foreign Intelligence Surveillance Court (FISC).  When it set up the FISC in 1978, Congress tasked it with reviewing requests from the executive branch to engage in surveillance of non-citizens.  The FISC would only authorize the surveillance if the target was specific and the request was supported by probable cause.  The FAA lessens the government’s burden and decreases the oversight of the FISC. The three-judge panel ruled that the plaintiffs – human rights activists, lawyers, and journalists – had standing to challenge the constitutionality of the FAA.

The plaintiffs assert that their work requirers them to communicate with some shady characters, including persons suspected of terrorism, and that such communications will likely be monitored by the government under the new FAA procedures. They allege that the FAA caused them injury because they sought to avoid surveillance through precautions, such as traveling long distances to communicate face-to-face with clients or sources. The panel ruled this injury satisfies the standing requirement, which limits judicial review to suits by plaintiffs who are truly harmed by the challenged action.

The dissenting judges argued this type of injury does not establish standing because it is due to the plaintiffs’ speculation that they are targeted by the FAA procedures. They argued that such a broad view of standing infringes the authority of the political branches. One dissenting judge emphasized that the Supreme Court’s standing rules require that an injury be “imminent.”

Chief Judge Dennis Jacobs, in his solitary dissent, questioned the motives of the plaintiffs’ attorneys, alleging they seek “a role in policy-making for which they were not appointed or elected, for which they are not fitted by experience, and for which they are not accountable.” Jacobs argues the plaintiffs sued “to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation.”

Some civil liberties advocates have criticized Jacobs’ attack on these attorneys. Regardless of whether this criticism is warranted, what was behind Jacobs’ vitriol? Conservative judges may feel that the standing requirement is the only thing keeping the courts from considering the merits of the plaintiffs’ claim that the FAA violates the Fourth Amendment. Given the Second Circuit’s bitter split, the Supreme Court may review the panel’s decision on standing.

No one knows who is targeted by FAA surveillance, because the process is secret. If these plaintiffs do not have standing in this situation, who does?