A group of lawyers, journalists, human rights researchers, and others had sued to challenge the constitutionality of the government eavesdropping system, based upon an "objectively reasonable likelihood" of being spied upon and the extent to which each had already modified his or her communications to avoid what was deemed illegal surveillance. Among this group are attorneys who work with Guantanamo detainees who need to speak to their clients' families in overseas trouble spots and journalists who need to speak to sources in Iran, Syria, Cuba and Libya. The Obama Administration, in response, asked the Court to find that no one could file suit without first demonstrating that he or she had been or would be monitored, or that the monitoring would cause any real harm.
Trust the FISA Court, they argued, and the Court agreed that speculative harm was not enough, both as to whether they would be monitored or that the FISA Amendments would be the method. Was this kind of one-sided system fair? According to Justice Scalia during oral argument, so what if no one can challenge the government?
JUSTICE SCALIA: Mr. Verrilli, we've had we've had cases in the past where it is clear that nobody would have standing to challenge what is -- what is brought before this Court.Why this is a bad idea, under the gnocchi:
GENERAL VERRILLI: That's exactly right, Justice Scalia.
JUSTICE SCALIA: And we've said that that just proves that under our system of separated powers, it is none of our business.
As Justice Breyer explains, there's nothing speculative about this harm at all:
First, the plaintiffs have engaged, and continue to engage, in electronic communications of a kind that the 2008 amendment, but not the prior Act, authorizes the Government to intercept. These communications include discussions with family members of those detained at Guantanamo, friends and acquaintances of those persons, and investigators, experts and others with knowledge of circumstances related to terrorist activities. These persons are foreigners located outside the United States. They are not “foreign power[s]” or “agent[s] of . . . foreign power[s].” And the plaintiffs state that they exchange with these persons “foreign intelligence information,” defined to include information that “relates to” “international terrorism” and “the national defense or the security of the United StatesMoreover, the dissenters explain:
Second, the plaintiffs have a strong motive to engage in, and the Government has a strong motive to listen to, conversations of the kind described. A lawyer representing a client normally seeks to learn the circumstances surrounding the crime (or the civil wrong) of which the client is accused. A fair reading of the affidavit of Scott McKay, for example, taken together with elementary considerations of a lawyer’s obligation to his client, indicates that McKay will engage in conversations that concern what suspected foreign terrorists, such as his client have done; in conversations that concern his clients’ families, colleagues, and contacts; in conversations that concern what those persons (or those connected to them) have said and done, at least in relation to terrorist activities; in conversations that concern the political, social, and commercial environments in which the suspected terrorists have lived and worked; and so forth. …
At the same time, the Government has a strong motive to conduct surveillance of conversations that contain material of this kind. The Government, after all, seeks to learn as much as it can reasonably learn about suspected terrorists (such as those detained at Guantanamo), as well as about their contacts and activities, along with those of friends and family members. … And the Government is motivated to do so, not simply by the desire to help convict those whom the Government believes guilty, but also by the critical, overriding need to protect America from terrorism. …
Third, the Government’s past behavior shows that it has sought, and hence will in all likelihood continue to seek, information about alleged terrorists and detainees through means that include surveillance of electronic communications. As just pointed out, plaintiff Scott McKay states that the Government (under the authority of the pre-2008 law) “intercepted some 10,000 telephone calls and 20,000 email communications involving [his client] Mr. Al-Hussayen.”
The Government does not deny that it has both the motive and the capacity to listen to communications of the kind described by plaintiffs. Nor does it describe any system for avoiding the interception of an electronic communication that happens to include a party who is an American lawyer, journalist, or human rights worker. One can, of course, always imagine some special circumstance that negates a virtual likelihood, no matter how strong. But the same is true about most, if not all, ordinary inferences about future events. Perhaps, despite pouring rain, the streets will remain dry (due to the presence of a special chemical). But ordinarily a party that seeks to defeat a strong natural inference must bear the burden of showing that some such special circumstance exists. And no one has suggested any such special circumstance here.And the rest of the dissent outlines how often other types of plaintiffs, with other claims, have been able to maintain access to courts to avoid harms which are even more speculative than these. But no matter: Trust the government, trust the FISA Court is the principle which prevailed today.
Consequently, we need only assume that the Government is doing its job (to find out about, and combat, terrorism) in order to conclude that there is a high probability that the Government will intercept at least some electronic communication to which at least some of the plaintiffs are parties. The majority is wrong when it describes the harm threatened plaintiffs as “speculative.”