En banc smackdown on phone surviellance lawsuit

If you don't know how the Court of Appeals is structured, there are 12 active judges and another 12 judges on senior status. Three judges sit on any given case, and if you lose in the Second Circuit, you can ask the entire court to hear the case en banc, all 20 judges and all. The Second Circuit rarely hears a case en banc, but that does not mean these applications do not provide for some riveting reading as the individual judges trade barbs back and forth on whether to hear the case as a full court.

The case is ACLU v. Clapper. The series of individual en banc opinions was handed down on September 21. The Second Circuit originally decided Clapper on May 21. A summary of that decision is here. In that decision, the Court of Appeals said that various journalists, scholars and lawyers have standing to challenge recent amendments to the Foreign Intelligence Surveillance Act, which makes it easier for the government to eavesdrop on telephone conversations with non-Americans outside this country. As the plaintiffs make their living speaking and working with foreigners, they convinced the Court of Appeals that they had a legitimate stake in challenging the constitutionality of the law because this surveillance requires the plaintiffs to expend additional costs to travel abroad to speak to these targets in person rather than have their sensitive and/or confidential phone conversations recorded without their knowledge. In other words, the plaintiffs have standing to bring this lawsuit. Here's how I summarized the case in May:

In challenging the law, plaintiffs filed affidavits that said "the individuals with whom [they] communicate include 'people the U.S. Government believes or believed to be associated with terrorist organizations,' 'political and human rights activists who oppose governments that are supported economically or militarily by the U.S. government,' and 'people located in geographic areas that a special focus of the U.S. government's counterterrorism or diplomatic efforts.'" Their legal injuries stem from their fear of future government surveillance under the 2008 amendments to the wiretapping laws, which have "compromised their ability to locate witnesses, cultivate sources, gather information, communicate confidential information to their clients,and to engage in other legitimate and constitutionally protected communications." They also have to take costly and time-consuming measures to avoid the wiretapping, including traveling long distances to meet personally with individuals.

Unsatisfied with this ruling, the government filed an en banc petition. As usual, the Court of Appeals declines to grant that petition, so the original panel decision stands. The Second Circuit rejected en banc review by a 6-6 vote, more or less along Democratic-Republican lines. Judge Lynch writes an opinion explaining why the original panel decision was correctly decided under traditional standing principles, which hold that you can challenge government policy in court if you can show through affidavits that you will be directly affected by the policy. Judge Lynch is not sure the plaintiff can win the case on the merits, but that's something for the trial court to worry about. His sole rhetorical flourish here is that "the Constitution sets limits on the powers even of Congress. It is the glory of our system that even our elected leaders must defend the legality of their conduct when challenged."

Judges Raggi and Livingston each file lengthy dissents from the Court's refusal to hear the case en banc. Judge Raggi writes that "A rule that allows a plaintiff to establish standing simply by incurring costs in response to a not-irrational fear of challenged conduct is unprecedented. On that theory, even a mobster's girlfriend who pays for a cab to meet with him in person rather than converse by telephone would be acting on a not-irrational fear of Title III interception and, therefore, have standing to challenge that statute." Judge Livingston writes that the original panel decision is "in frank disregard of clear Supreme Court authority."

But Chief Judge Jacobs provides the real rhetorical fireworks. This is no surprise. The Chief is known for this. Here, Judge Jacobs calls this case a political stunt:

At the risk of sounding obvious, the purpose of this lawsuit is litigation for its own sake -- for these lawyers to claim 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. As best I can see, the only purpose of this litigation is for counsel and plaintiffs 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. In short, counsel's and plaintiffs' only perceptible interest is to carve out for themselves influence over government policy -- an interest that the law of standing forecloses.