The <em>Clapper</em> Fix: Congress and Standing to Challenge Secret Surveillance

As the Supreme Court's October 2012 Term enters its climactic closing week, I've been thinking a lot about the most important national security decision of the Term--the 5-4 February 26 decision in Clapper v. Amnesty International, holding that the Plaintiffs lacked standing to challenge section 702 of the FISA Amendments Act of 2008 (FAA) because they could not prove that interception of their communications under section 702 was "certainly impending," and therefore could not satisfy the "injury-in-fact" prong of the Supreme Court's test for Article III standing. Given that language, and the secret nature of surveillance conducted pursuant to section 702, most assumed that Clapper thereby slammed the door on legal challenges to the FAA. After all, absent a mistake by the government, how would any putative plaintiff ever find out that their communications were intercepted under section 702? Even the various revelations of the past few weeks haven't materially affected this story, since they all involve surveillance under other provisions of FISA and the FAA--not section 702. But the more I've thought about this issue, the more I think there might be room for Congress to "fix" Clapper (if it were so inclined) by defining for itself what constitutes an "injury-in-fact" in suits challenging section 702. As I explain below the fold, the key is in understanding the critical difference between Justice Scalia's opinion for the majority in Lujan v. Defenders of Wildlife, and Justice Kennedy's far-narrower opinion concurring in the judgment. Assuming that Kennedy's is the vote that matters here, I think Congress could make it easier for plaintiffs to establish standing to challenge section 702; the question would then shift from law to policy--and whether Congress wants to do so... The problem in Clapper is easy enough to describe: As Justice Alito wrote for the majority, "respondents' speculative chain of possibilities does not establish that injury based on potential future surveillance is certainly impending or is fairly traceable to § 1881a," i.e., section 702 of the FAA. This was so, of course, because the plaintiffs in Clapper could not prove that their communications had been, or would be, intercepted--whether as a general matter or specifically pursuant to surveillance undertaken under section 702. Even though there was a "very high likelihood," as Justice Breyer put it in his dissent, that such communications would be intercepted under section 702, the Court's standing jurisprudence required more for plaintiffs to establish an "injury in fact." What Clapper does not address (because it was not an issue there) is whether Congress could lower this particular bar--and define the relevant threshold for plaintiffs to establish such an injury. In its 1992 decision in Lujan, the Court held that Congress may not, in fact, relax Article III standing requirements (there invalidating the citizen-suit provision of the Endangered Species Act). But although Justice Scalia's opinion for the Lujan majority generally disclaimed the idea that Congress could identify more amorphous injuries than those the Court had previously held to be required by Article III, Justice Kennedy (joined by Justice Souter) wrote a narrower opinion, concurring only in part and in the judgment. As he explained, "In my view, Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before . . . ." For Justice Kennedy, at least, it would only violate Article III if, "at the behest of Congress and in the absence of any showing of concrete injury, we were to entertain citizen suits to vindicate the public's nonconcrete interest in the proper administration of the laws." In other words, Justice Kennedy agreed with the Lujan majority that Congress could not create generalized grievances and empower any citizen to sue to vindicate them (as under the ESA). But this language also suggests that, unlike Justice Scalia, Justice Kennedy would allow Congress to relax Article III's injury requirement so long as a plaintiff still had to make some showing that he, specifically, had been injured by the challenged governmental conduct in a manner distinct from the undifferentiated public at large. Thus, for Justice Kennedy, at least, there is a difference between Article III standing in the abstract and Article III standing in cases in which Congress has specifically identified the injury... With that in mind, suppose Congress enacted the following language as new 50 U.S.C. § 1881h:

For purposes of any claim brought in any court of the United States challenging surveillance conducted pursuant to this subchapter, an "injury in fact" will exist whenever a party can show that (1) it is more likely than not that communications in which it participated have been—or would at some future point be—intercepted pursuant to such surveillance; and (2) it has taken concrete steps to avoid such surveillance.

Under this standard, a party could only challenge section 702 in a case like Clapper, i.e., where it was not only reasonably likely that their communications would be intercepted, but where they incurred specific costs in an attempt to avoid that injury. The former requirement ties the injury to the statute; the latter ensures that such a claim will not be a generalized grievance brought by someone with no real stake in the outcome. To be sure, there's no guarantee that such language would fall on Justice Kennedy's side of the Lujan line--especially because reasonable folks might disagree about whether a party can satisfy a requirement of "concrete injury" with circumstantial evidence assessed under a preponderance standard. In the other direction, even this standard might still be difficult to satisfy given the pervasive secrecy surrounding section 702 surveillance. And of course, there may be stronger language that can be written to accomplish the same goal... My point here is only that there is meaningful daylight between the conservative bloc of the Supreme Coourt and Justice Kennedy when it comes to standing in those cases in which Congress has specifically legislated a lower standing threshold--and so folks interested in "fixing" Clapper might well start there...