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No. 07-468

 

In the Supreme Court of the United States

AMERICAN CIVIL LIBERTIES UNION, ET AL.,
PETITIONERS

v.

NATIONAL SECURITY AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General
DOUGLAS N. LETTER
THOMAS M. BONDY
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether petitioners have standing to seek pros pective equitable relief against a foreign intelligence- gathering program that no longer exists, without any evidence that they were ever surveilled under that pro gram.

2. Whether petitioners' prospective challenge to the program is justiciable despite the fact that the program no longer exists.

In the Supreme Court of the United States

No. 07-468

AMERICAN CIVIL LIBERTIES UNION, ET AL.,
PETITIONERS

v.

NATIONAL SECURITY AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The decision of the court of appeals (Pet. App. 66a- 235a) is reported at 493 F.3d 644. The decision of the district court (Pet. App. 1a-65a) is reported at 438 F. Supp. 2d 754.

JURISDICTION

The judgment of the court of appeals was entered on July 6, 2007 (Pet. App. 66a). The petition for a writ of certiorari was filed on October 3, 2007. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. On September 11, 2001, al Qaeda agents who had entered the United States launched coordinated attacks on key strategic sites, killing approximately 3,000 people. The President immediately declared a national em ergency in view of "the continuing and immediate threat of further attacks on the United States." 66 Fed. Reg. 48,199 (2001). The United States also launched a mili tary campaign against al Qaeda, and Congress autho rized the President "to use all necessary and appropri ate force against those nations, organizations, or per sons he determines planned, authorized, committed, or aided the terrorist attacks" of September 11. See Au thorization for Use of Military Force (AUMF), Pub. L. No. 107-40, § 2(a), 115 Stat. 224. Since that time, top al Qaeda leaders, including Osama bin Laden, have repeat edly vowed to strike America and her allies again. See, e.g., President's News Conference, 41 Weekly Comp. Pres. Doc. 1885, 1886 (Dec. 19, 2005) (News Conference).

Against this backdrop, and in light of unauthorized media disclosures, the President acknowledged in De cember 2005 that he had authorized what he termed a Terrorist Surveillance Program (TSP) by directing the National Security Agency (NSA) to intercept interna tional communications into and out of the United States of persons linked to al Qaeda. News Conference 1885. The government publicly stated that communications would be intercepted under this program only if there were reasonable grounds to believe that one party to the international communication was a member or agent of al Qaeda or an affiliated terrorist organization. See id. at 1889. The government has never revealed the meth ods and means of the TSP-including the identities of persons surveilled under that program-because of the grave harm to national security that would result from such disclosure.

In January 2007, the Attorney General publicly ad vised the Senate Judiciary Committee that, "on January 10, 2007, a Judge of the Foreign Intelligence Surveil lance Court [FISC] issued orders authorizing the Gov ernment to target for collection international communi cations into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated ter rorist organization. As a result of these orders, any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Sur veillance Court." Letter from the Attorney General to the Chairman and Ranking Member of the Senate Judi ciary Committee (Jan. 17, 2007). The Attorney General explained that, while "the Terrorist Surveillance Pro gram fully complie[d] with the law," the "complex" and "innovative" FISC orders "allow[ed] the necessary speed and agility while providing substantial advan tages" for conducting foreign intelligence activities. Ibid. "[U]nder these circumstances, the President * * * determined not to reauthorize the Terrorist Sur veillance Program." Ibid. As a result, the program ac knowledged by the President no longer exists.

2. In January 2006, while the TSP was in effect, peti tioners filed this suit, which seeks only prospective equi table relief. C.A. App. 75-76. Petitioners alleged that they conducted international telephone calls for journal istic, legal, and scholarly purposes, that the TSP would likely have intercepted some of their calls, and that such interception was unlawful. Id. at 18. In response, the United States formally asserted the state secrets privi lege through the then-Director of National Intelligence, John Negroponte, and the NSA's Signals Intelligence Director, Major General Richard Quirk. Director Ne groponte and General Quirk explained in public declara tions that "to discuss the TSP in any greater detail [than has been made public] * * * would disclose classified intelligence information and reveal intelligence sources and methods, which would enable adversaries of the United States to avoid detection by the U.S. Intelligence Community and/or take measures to defeat or neutralize U.S. intelligence collection, posing a serious threat of damage to the United States' national security inter ests." Id. at 164; see id. at 170. The government also provided the district court with ex parte, in camera clas sified declarations of both Director Negroponte and General Quirk elaborating on the details of the TSP and the government's assertion of the state secrets privilege.

3. The district court permanently enjoined further use of the TSP. Pet. App. 1a-65a. The court first deter mined that the government had "appropriately invoked" the state secrets privilege. Id. at 16a. "After reviewing [the classified] materials," the court explained that it was "convinced that the privilege applies 'because a rea sonable danger exists that disclosing the information in court proceedings would harm national security inter ests, or would impair national defense capabilities, dis close intelligence-gathering methods or capabilities, or disrupt diplomatic relations with foreign governments.'" Id. at 17a (quoting Tennenbaum v. Simoni, 372 F.3d 776, 777 (6th Cir.), cert denied, 543 U.S. 1000 (2004)). The court nevertheless declined to dismiss the case, con cluding that petitioners' challenge could proceed on the theory that their "claims regarding the TSP are based solely on what Defendants have publicly admitted." Id. at 18a.

The district court held that petitioners had estab lished standing to challenge the TSP because they "are not merely alleging that they 'could conceivably' become subject to surveillance under the TSP, but that continua tion of the TSP has damaged them." Pet. App. 27a. On the merits, the court held that "searches conducted without prior approval by a judge or magistrate [are] per se unreasonable" under the Fourth Amendment, and that the TSP violated the First and Fourth Amendments for that reason. Id. at 34a, 47a. The court went on to state that the TSP violated the constitutional separation of powers because it was inconsistent with the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. 1801 et seq., which generally requires the government to obtain the approval of the FISC for "electronic surveillance." Pet. App. 51a-52a.1

4. The government appealed and obtained a stay of the district court's injunction. After the Attorney Gen eral publicly advised the Senate Judiciary Committee of the January 2007 FISC orders, see pp. 2-3, supra, the government filed a supplemental submission in the court of appeals urging that this case was moot. The govern ment explained that the TSP no longer had any live sig nificance because, "[a]s a result of the new orders, any electronic surveillance that was conducted as part of the TSP is now being conducted subject to the approval of the [FISC]." Decl. of Lieutenant General Keith B. Alex ander, Director, NSA ¶ 3 (Jan. 24, 2007) (Alexander Decl.).

5. Without reaching the government's mootness ar gument, the court of appeals vacated the judgment of the district court and remanded with instructions to dis miss for lack of standing. See Pet. App. 67a, 74a-75a n.4.

a. In the lead opinion, Judge Batchelder emphasized that petitioners "have not challenged on appeal either the invocation or the grant of the state secrets privi lege." Pet. App. 72a n.3. With respect to standing, Judge Batchelder explained that petitioners "do not- and because of the State Secrets Doctrine cannot-pro duce any evidence that any of their own communications have ever been intercepted by the NSA, under the TSP, or without warrants." Id. at 78a. Moreover, petitioners "do not allege as injury that they personally, either as individuals or associations, anticipate or fear any form of direct reprisal by the government * * * such as criminal prosecution, deportation, administrative in quiry, civil litigation, or even public exposure." Id. at 79a. Instead, Judge Batchelder explained, petitioners alleged "only a subjective apprehension and a personal (self-imposed) unwillingness to communicate" out of fear that some of their communications might be intercepted under the TSP. Id. at 100a.

Judge Batchelder held that petitioners' attempt to establish standing based on a subjective chilling effect fails under this Court's decision in Laird v. Tatum, 408 U.S. 1 (1972), which she construed to hold that "a plain tiff must establish that he or she is regulated, con strained, or compelled directly by the government's ac tions, instead of by his or her own subjective chill." Pet. App. 96a. Judge Batchelder further rejected petition ers' contention that they possess standing because their reluctance to communicate electronically has caused them professional harm. Ibid. She explained that such an exception to Laird "would effectively value commer cial speech above political speech," even though the lat ter is entitled to greater protection. Ibid.

In addition, Judge Batchelder determined that, even if petitioners had suffered a cognizable injury, any such injury was not caused by the TSP and would not be redressable by a favorable decision in this case. Pet. App. 112a-116a, 119a-123a. Because petitioners assert that their overseas contacts are "the types of people likely to be monitored by the NSA," their communica tions might be monitored under FISA or some other source of law even apart from the TSP. Id. at 114a-115a. Thus, Judge Batchelder concluded, petitioners would face the same chilling effect even if the TSP were en joined. Ibid.

b. Judge Gibbons concurred in the judgment. Pet. App. 159a-170a. She determined that "[t]he disposition of all of the plaintiffs' claims depends upon the single fact that the plaintiffs have failed to provide evidence that they are personally subject to the TSP." Id. at 159a. In her view, "a plaintiff must be actually subject to the defendant's conduct, not simply afraid of being subject to it." Id. at 164a.

c. Judge Gilman dissented. Pet. App. 171a-233a. He believed that the attorney-plaintiffs have standing because, "as part of their representation of clients ac cused of being enemy combatants or of providing aid to organizations designated as terrorist groups * * * these attorneys have communicated with potential wit nesses, experts, lawyers, and other individuals who live and work outside the United States about subjects such as terrorism, jihad, and al-Qaeda." Id. at 177a-178a. On the merits, Judge Gilman "conclude[d] that the TSP vio lates FISA and Title III [of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 212 (18 U.S.C. 2510 et seq.)] and that the President does not have the inherent authority to act in disregard of those statutes." Id. at 217a; see id. at 217a-233a.

6. On August 5, 2007, after the court of appeals' rul ing, Congress enacted the Protect America Act (PAA), Pub. L. No. 110-55, 121 Stat. 552. Among other things, the PAA provides that "[n]othing in the definition of electronic surveillance under [FISA] shall be construed to encompass surveillance directed at a person reason ably believed to be located outside the United States." § 2, 121 Stat. 552. The PAA provides for procedures governing the acquisition of foreign intelligence infor mation concerning persons reasonably believed to be outside the United States, review of those procedures by the FISC, and mandatory reporting to Congress by the Attorney General. §§ 2-4, 121 Stat. 552-556. The PAA specifies that, except as otherwise provided, "the amendments made by this Act shall take effect immedi ately after the date of the enactment of this Act," and "shall cease to have effect 180 days after the date of the enactment of this Act." § 6, 121 Stat. 556-557.

ARGUMENT

Petitioners argue (Pet. 19-32) that they have stand ing to seek prospective equitable relief against the TSP-a program that no longer exists-on the ground that it was unlawful. Petitioners do not, however, chal lenge the district court's determination that the state secrets privilege bars them from proving that they were surveilled under that program. The court of appeals' holding that petitioners cannot establish standing with out such evidence is correct and does not conflict with any decision of this Court or any other court of appeals. Indeed, petitioners candidly and correctly conceded be low that their standing theory is "unprecedented." Pet. App. 82a n.11, 88a n.17. Petitioners' challenge to the legality of the TSP is not properly presented in this case, not only because petitioners lack standing, but also because the court below did not reach that question. Moreover, the government's discontinuance of the TSP in January 2007, and Congress's subsequent enactment of the PAA, deprived this action-which seeks only pro spective equitable relief against the TSP-of any contin uing, live significance. Further review is unwarranted.

1. a. Petitioners do not challenge the district court's holding that the government properly invoked the state secrets privilege and that the privilege protects against disclosure of whether petitioners were surveilled under the TSP. After reviewing the classified materials that the government had submitted for ex parte, in camera review, the district court correctly found that the gov ernment had properly invoked the state secrets privi lege, and that "the information for which the privilege is claimed qualifies as a state secret," because "a reason able danger exists that disclosing the information in court proceedings would harm national security inter ests." Pet. App. 17a (citations omitted).

The information protected by the state secrets privi lege includes "whether [petitioners] have been subject to surveillance by the NSA," as well as other facts con cerning "intelligence activities, sources, methods, or tar gets" of the TSP. C.A. App. 164; see id. at 170. As the government's public declarations explained:

[D]isclosure of those who are targeted by [intelli gence] activities would compromise the collection of intelligence information just as disclosure of those who are not targeted would reveal to adversaries that certain communications channels are secure or, more broadly, would tend to reveal the methods be ing used to conduct surveillance. The only recourse for the Intelligence Community and, in this case, for the NSA, is to neither confirm nor deny these sorts of allegations, regardless of whether they are true or false. To say otherwise when challenged in litigation would result in routine exposure of intelligence infor mation, sources, and methods and would severely undermine surveillance activities in general.

Id. at 164-165; see id. at 170; cf. Al-Haramain Islamic Found., Inc. v. Bush, No. 06-36083, 2007 WL 3407182, at *12 (9th Cir. Nov. 16, 2007) (holding that "information as to whether the government surveilled [the plaintiff]" under the TSP was a state secret, and that "the basis for the privilege [was] exceptionally well documented" in the government's in camera, ex parte affidavits).

Petitioners did "not challenge[] on appeal either the invocation or the grant of the state secrets privilege," and the court of appeals did not pass upon those ques tions. Pet. App. 72a n.3; accord id. at 168a (Gibbons, J., concurring in the judgment). Thus, the question is not properly before this Court, see, e.g., United States v. Williams, 504 U.S. 36, 41 (1992), and the case therefore comes to this Court on the premise that petitioners can not prove that they were surveilled under the TSP. See Pet. App. 83a ("[P]laintiffs concede that there is no sin gle plaintiff who can show that he or she has actually been wiretapped.").

b. That fact is fatal to petitioners' attempt to prove standing. The Constitution "requires the party who in vokes the court's authority to show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Val ley Forge Christian Coll. v. Americans United for Sepa ration of Church & State, Inc., 454 U.S. 464, 472 (1982) (citation omitted; emphasis added). Thus, "persons who [a]re not parties to unlawfully overheard conversations * * * d[o] not have standing to contest the legality of the surveillance" on Fourth Amendment grounds. Rak as v. Illinois, 439 U.S. 128, 136 (1978). There is no rea son to reach a different conclusion about petitioners' other claims.

In analogous circumstances, courts have consistently held that a plaintiff lacks standing to challenge a gov ernment surveillance program where, as here, the state secrets privilege prevents the plaintiff from establish ing, and the government from refuting, that he was sur veilled. For example, in Halkin v. Helms, 690 F.2d 977 (D.C. Cir. 1982), plaintiffs argued that their names were included on "watchlists" used to govern NSA surveil lance, and that there was therefore a "substantial threat" that their communications would be intercepted. See id. at 983-984, 997. The District of Columbia Circuit nevertheless affirmed the dismissal of the plaintiffs' Fourth Amendment claim, "hold[ing] that [plaintiffs'] inability to adduce proof of actual acquisition of their communications" rendered them "incapable of making the showing necessary to establish their standing to seek relief." Id. at 998; accord Ellsberg v. Mitchell, 709 F.2d 51, 65 (D.C. Cir. 1983) (holding that the case had to be dismissed because plaintiff could not, absent recourse to state secrets, establish that he was surveilled).

Most recently, the Ninth Circuit unanimously held in Al-Haramain that a plaintiff lacked standing to chal lenge the TSP. 2007 WL 3407182, at *14. The Ninth Circuit explained that "information as to whether the government surveilled [the plaintiff]" under the TSP was a state secret, id. at *12, and that, without such in formation, the plaintiff "cannot establish that it has standing," id. at *14. In Al-Haramain, the plaintiff al leged that it had seen a classified document indicating that it had been subject to surveillance under the TSP. See id. at *1. Petitioners here offer nothing to establish standing other than claims of subjective "chill" on their speech or activities.2

The holdings of those cases are reinforced by FISA-the statute on which petitioners principally rely. FISA authorizes only an "aggrieved person" to bring a civil action challenging the acquisition of communica tions contents. 50 U.S.C. 1801(f) (2000 & Supp. IV 2004); 50 U.S.C. 1810. To ensure that the term "ag grieved person" is "coextensive [with], but no broader than, those persons who have standing to raise claims under the Fourth Amendment with respect to electronic surveillance" (H.R. Rep. No. 1283, 95th Cong., 2d Sess. 66 (1978)), Congress defined the term "aggrieved per son" to mean one "whose communications or activities were subject to electronic surveillance" or who was tar geted by such surveillance. 50 U.S.C. 1801(k) (emphasis added). Litigants who cannot establish their status as "aggrieved person[s]" do "not have standing" under "any" of FISA's provisions. H.R. Rep. No. 1283, supra, at 89-90. Because petitioners cannot prove that they were surveilled, the court of appeals correctly held that their suit must be dismissed for lack of standing.

c. Petitioners nonetheless contend (Pet. 4-6) that they have standing because they chose not to communi cate electronically with third parties, and third parties declined to communicate electronically with them, out of fear that their communications would be intercepted under the TSP. As Judge Batchelder explained, a per son's own decision to cease expressive activity does not establish standing. Pet. App. 96a; see Laird v. Tatum, 408 U.S. 1, 11 (1972); United Presbyterian Church v. Reagan, 738 F.2d 1375, 1380 (D.C. Cir. 1984) (Scalia, J.).

That conclusion follows directly from Laird. In Laird, "most if not all of the [plaintiffs]" established that they had "been the subject of Army surveillance reports." Tatum v. Laird, 444 F.2d 947, 954 n.17 (D.C. Cir. 1971), rev'd on other grounds, 408 U.S. 1 (1972). They argued that the surveillance of their activities had "chill[ed]" their exercise of First Amendment rights. Laird, 408 U.S. at 13. This Court nevertheless held that the plaintiffs failed to demonstrate "a direct injury as the result of [the government's] action," because their decision to curtail their expressive activity reflected a "subjective 'chill'" that did not qualify as a "specific present objective harm or a threat of specific future harm." Id. at 13-14 (citation omitted).

The Court in Laird explained that "none" of its deci sions in which government action violated the First Amendment because of its "'chilling' effect" on expres sive activity found standing based on a plaintiff's knowl edge of government activity and his "fear that, armed with the fruits of those activities, the [government] might" take other injurious action. 408 U.S. at 11. Rather, those cases involved harms directly caused by "the challenged exercise of governmental power" be cause the "complainant was either presently or prospec tively subject to the regulations, proscriptions, or com pulsions that he was challenging." Ibid.

Petitioners argue (Pet. 23) that Laird merely held that a plaintiff must prove some injury to establish standing. But the injuries alleged by petitioners all re sult from an alleged chilling effect on their communica tions, and that is precisely what Laird held insufficient to confer standing. Indeed, petitioners' asserted injury is even weaker than the one rejected in Laird. As Judge Batchelder explained, petitioners rely in large part on alleged injuries caused by alleged decisions of third parties-their foreign contacts-to cease communicating with them. See Pet. App. 116a-117a. A chilling effect on third parties is an even less appropriate basis for stand ing than a chilling effect on petitioners themselves. See ibid. Because "a federal court [may] act only to redress injury that fairly can be traced to the challenged action of the defendant," Simon v. East Ky. Welfare Rights Org., 426 U.S. 26, 41 (1976), standing is ordinarily "sub stantially more difficult" to establish where the claimed injury is the result of the independent actions of third parties. Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992) (citation omitted).

That does not mean, as petitioners suggest (Pet. 14), that no plaintiff will ever have standing to challenge any government surveillance program. The district court's unchallenged state secrets determination precludes peti tioners from attempting to prove their standing to chal lenge the TSP. But the state-secrets privilege is not lightly invoked, and the government's assertion of the privilege is subject to judicial review, as it was by the district court (which concluded that it was properly in voked by the government here). See Pet. App. 16a-17a; United States v. Reynolds, 345 U.S. 1, 8 (1953). More over, if the government sought to use the results of any surveillance against a person, that person might be able to prove standing based on the government's disclosure of the surveillance and any injury caused by the at tempted use. In any event, it is well settled that "[t]he assumption that if [petitioners] have no standing to sue, no one would have standing, is not a reason to find stand ing." Pet. App. 130a (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227 (1974)).3

d. Even if petitioners had established a relevant injury, they would still lack standing because they could not prove that the TSP caused their asserted injury or that the injury would be redressed by an injunction against the TSP. Cf. Defenders of Wildlife, 504 U.S. at 560-562. Under petitioners' own theory, the people they would like to telephone are suspected terrorists who might be subject to FISA-authorized surveillance or surveillance by their own (foreign) governments. See Pet. App. 114a. Thus, even if a chilling effect could give rise to a cognizable injury for standing purposes, it is at best speculative to assert that any chilling effect was caused by the TSP, as opposed to other sources, or that any injury from a chilling effect would be redressed by enjoining the TSP. As Judge Batchelder explained, peti tioners "have neither asserted nor proven any basis upon which to justifiably conclude that the mere absence of a warrant [under the TSP] * * * is the cause of [peti tioners'] (and their overseas contacts') reluctance to communicate by telephone or email." Id. at 113a. That was true when the TSP existed, and it is especially true now that the TSP no longer exists.

e. There is no circuit split on the question presented here, and petitioners' contrary contention (Pet. 21) is undercut by their concession below that, at least for their Fourth Amendment claim, "it would be unprece dented for a court to find standing" without proof that the plaintiff's communications were intercepted. Pet. App. 82a n.11, 88a n.17. Petitioners assert (Pet. 21) that courts disagree on whether injury, traceability, and redressability suffice to establish standing to challenge a surveillance program. But no court disagrees that those are the requirements for Article III standing; in stead, the question in each case is whether, on the facts of the case, those requirements are satisfied.

While petitioners allege (Pet. 21) that the decision below conflicts with Ozonoff v. Berzak, 744 F.2d 224 (1st Cir. 1984), and Presbyterian Church v. United States, 870 F.2d 518 (9th Cir. 1989), the court of appeals cor rectly distinguished both of those cases, along with the other cases on which petitioners relied below. Pet. App. 103a-104a, 106a-109a; see id. at 166a (Gibbons, J., con curring in the judgment).

In Ozonoff, the government required the plaintiff to submit to a "loyalty screening" program as a condition to seeking a job. 744 F.2d at 226, 229. Here, in contrast, petitioners have not proven that the government tar geted them in any way; the government has not required petitioners to do anything (much less take a loyalty test); and the government has not sought to impose any consequences for anything petitioners might have done. Ozonoff drew that very distinction by emphasizing that the plaintiff there, unlike the plaintiffs in Laird, "claim[ed] that the information gathering activities were directed against [him] specifically." Id. at 229. More over, there was no analogous redressability issue in Ozonoff because the loyalty-screening requirement was the clear cause of the plaintiff's injury. Id. at 230.

In Presbyterian Church, the plaintiff churches al leged that the government had surreptitiously recorded worship services and thereby deterred the churches' members from attending worship services. 870 F.2d at 521-522. The Ninth Circuit held that the churches had suffered an "organizational injury" based on the surveil lance of their own services. Id. at 522. Here, in con trast, petitioners cannot prove that they (or any mem bers of theirs) were surveilled. Moreover, the Ninth Circuit relied in part on a reputational injury to the churches, id. at 522-523-a type of injury that is not at issue here. Nor did Presbyterian Church present the same redressability issue that is presented here, be cause the plaintiffs there challenged the only relevant surveillance. Cf. id. at 523. The absence of a conflict with the Ninth Circuit's Presbyterian Church decision is further confirmed by that circuit's recent holding in Al-Haramain-a far more analogous case than Presby terian Church-that "information as to whether the go vernment surveilled [the plaintiff]" under the TSP was a state secret, 2007 WL 3407182, at *12, and that, with out such information, the plaintiff in that case could not "establish that it has standing," id. at *14.4

2. Petitioners (Pet. 28-32) also ask this Court to ad dress a question that neither the court of appeals below nor any other appellate court has addressed: whether the TSP was lawful. The court of appeals did not reach that issue because of its holding that petitioners lack standing. And because "this is a court of final review and not first view," Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 110 (2001) (citation omitted), that question is not properly presented by this case.

Petitioners' challenge to the TSP also has been over taken by intervening events-the TSP no longer exists. Indeed, the TSP is now two steps removed from current activities.

Petitioners filed this action in January 2006 seeking prospective relief against the TSP. See C.A. App. 18-19. The suit was predicated on the notion that the TSP was unlawful because it authorized electronic surveillance "without court approval." Id. at 18, 29. In the wake of the January 2007 FISC orders, however, the President allowed the TSP to lapse, and any electronic surveillance that had been occurring as part of the TSP then began to be conducted subject to the approval of the FISC. See Alexander Decl. ¶¶ 3-4. While the court of appeals declined to reach the government's mootness argument because the court found that petitioners lack standing, Pet. App. 74a-75a n.4, the termination of the relevant program nearly a year ago renders the controversy moot and, a fortiori, counsels strongly against this Court's review of this case and certainly petitioners' merits arguments. There is no live controversy as to petitioners' prospective-only challenge to a program that no longer exists.

Moreover, after the court of appeals issued its ruling in this case, Congress changed the legal landscape yet again by enacting the Protect America Act in August 2007. Among other things, the PAA provides that FISA's limitations on "electronic surveillance" do not apply to "surveillance directed at a person reasonably believed to be located outside of the United States." § 2, 121 Stat. 552. On a prospective basis, therefore, the PAA defeats the essential premise underlying petition ers' case: that the surveillance that used to be con ducted under the TSP-i.e., surveillance in which one party to the communication is located outside of the United States-is statutorily subject to FISA's require ments for electronic surveillance.

Petitioners all but concede that their challenge to the TSP lacks prospective significance by arguing (Pet. 27) that they "continue to suffer injury to the extent that executive branch officials are conducting surveillance under the PAA without meaningful judicial review" (em phasis added). Petitioners further state (Pet. 14) that the court of appeals' decision that they lack standing "forecloses [them] from amending their complaint to challenge the constitutionality of the [PAA]." Those contentions only underscore that petitioners no longer suffer any injury from the TSP, which is the only pro gram petitioners have challenged in this case. If peti tioners or others wish to file a suit challenging the PAA, they are free to do so.5 But that is no reason to review petitioners' standing to challenge the now-defunct TSP, much less to consider the merits of their challenge to that program.

Pointing to the PAA's sunset clause, which generally provides that the amendments made by the PAA will cease to have effect in February 2008, see PAA § 6(c), 121 Stat. 557, petitioners observe (Pet. 13, 29-30, 32) that the PAA might not be extended or reenacted in its current form, and that the current or a subsequent Pres ident might decide at some future point to reinstate the TSP. But it seems much more likely that Congress would choose to extend the PAA or supplant it with more permanent legislation. In any event, such specula tion serves only to underscore the absence of a live con troversy concerning the discontinued TSP at this time. And even if the Executive were to implement a future program that was not subject to judicial supervision, there is no reason to believe that it would be materially indistinguishable from the TSP. At most, the potential lapse of the PAA means only that the TSP may be three steps removed from activities occurring at the time this Court could consider this case.

This Court has stressed that federal courts must avoid needlessly addressing serious constitutional is sues, see, e.g., INS v. St. Cyr, 533 U.S. 289, 299-300 (2001), and should proceed with special caution where the President's war powers are implicated, see Hamdi v. Rumsfeld, 542 U.S. 507, 539 (2004) (plurality opinion). Those considerations are especially apt here, where liti gating the merits of petitioners' claims would require delving into sensitive state secrets and possibly deciding delicate constitutional questions concerning the scope of the President's constitutional authority to conduct for eign intelligence surveillance in wartime.

3. In any event, petitioners' failure to take issue with the district court's state secrets ruling dooms their claims on the merits. In challenging the TSP, petition ers rely (Pet. 28) on FISA, which imposes various limita tions on "electronic surveillance." 50 U.S.C. 1809(a). As Judge Batchelder determined, petitioners cannot prevail on their contention that the TSP violated FISA because, in light of the state secrets doctrine (which petitioners have not challenged), they cannot show that the TSP relied on "electronic surveillance" within the meaning of FISA. Pet. App. 145a-146a, 150a.

More fundamentally, any consideration of the merits of petitioners' challenges to the TSP would require con sideration of materials protected by the state secrets privilege. Their Fourth Amendment challenge, for ex ample, would require consideration of information en compassed by the state secrets privilege, including in formation concerning the need for the TSP to protect national security and the extent to which the TSP was tailored as an effective response. Thus, even if petition ers could establish standing, the state secrets privilege would preclude litigation of the merits of their claims. See Halkin, 690 F.2d at 1000 (holding that Fourth Am endment claim challenging warrantless surveillance is "impossible" to adjudicate where state secrets privilege encompasses facts relevant to reasonableness inquiry).

Above all, however, this petition provides no occasion for this Court to wade into such sensitive issues in light of the facts that petitioners have failed to establish standing and that the program they seek to enjoin on a prospective basis (only) no longer exists.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

 

PAUL D. CLEMENT
Solicitor General
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General
DOUGLAS N. LETTER
THOMAS M. BONDY
Attorneys

 

 

DECEMBER 2007

 

 

1 The district court granted the government's summary judgment motion with respect to petitioners' "datamining" claim, which chal lenged a different alleged surveillance activity. See Pet. App. 20a-21a. The court of appeals affirmed the dismissal of that claim, id. at 158a, and petitioners do not challenge that determination in this Court, Pet. 4 n.9, 7 n.11.

2 The Al-Haramain court remanded for the district court to deter mine, in the first instance, whether FISA preempts the state secrets privilege. 2007 WL 3407182, at *14. That question is not presented here because petitioners have not challenged the applicability of the state secrets privilege and, in any event, have never claimed, in the lower courts or in their petition for a writ of certiorari, that FISA dis places that privilege. Moreover, no court has ever held that FISA has that effect.

3 Nor are petitioners (Pet. 15, 19, 26) correct that, under the court of appeals' decision, a plaintiff must prove surveillance "with certainty." Proof by a preponderance of the evidence would suffice. Here, how ever, petitioners' contention that they have been surveilled is "purely speculative." Pet. App. 163a (Gibbons, J., concurring in the judgment). As Judge Batchelder explained, "[t]he evidence establishes only a pos sibility not a probability or certainty that these communications might be intercepted." Id. at 128a (second emphasis added).

4 Petitioners' reliance (Pet. 26) on environmental cases is misplaced for similar reasons. See Pet. App. 154a-155a; id. at 161a-164a (Gibbons, J., concurring in the judgment). An environmental plaintiff can gene rally establish standing by showing that he uses an area affected by pollution and has reduced that use because he reasonably fears injury from the pollution. See, e.g., Friends of the Earth, Inc. v. Laidlaw Env'tl Servs., Inc., 528 U.S. 167, 183-184 (2000). As Judge Batchelder explained, however, just as environmental plaintiffs cannot establish standing "without any evidence that the defendant has polluted their particular river," petitioners here cannot establish standing without "evidence that the government has intercepted their particular com munications." Pet. App. 155a; see id. at 161a (Gibbons, J., concurring in the judgment) (emphasizing that, in Laidlaw, "the plaintiffs * * * were in fact subject to defendant's conduct"). Thus, for example, in Laidlaw, the plaintiff submitted detailed declarations from its members explaining that they had direct exposure to the waterborne pollution at issue in that case. See 528 U.S. at 181-183. Petitioners here, by con trast, cannot show that they have ever been subject to the activity about which they complain.

5 At least one such case is pending, along with dozens of other cases involving related issues that have been consolidated for pretrial purpos es in a multi-district litigation proceeding in In re NSA Telecommuni cations Records Litigation, MDL No. 06-1791 (N.D. Cal.). Unlike this case, many of those cases involve claims for retrospective monetary relief.