CLAPPER v. AMNESTY INTERNATIONAL USA
Several groups, including attorneys, journalists, and human rights organizations, brought a facial challenge to a provision of the Foreign Intelligence Surveillance Act (FISA). The provision creates new procedures for authorizing government electronic surveillance of non-U.S. persons outside the U.S. for foreign intelligence purposes. The groups argue that the procedures violate the Fourth Amendment, the First Amendment, Article III of the Constitution, and the principle of separation of powers. The new provisions would force these groups to take costly measures to ensure the confidentiality of their international communications. The District Court for the Southern District of New York granted summary judgment for the government, holding that the groups did not have standing to bring their challenge. The groups only had an abstract subjective fear of being monitored and provided no proof that they were subject to the FISA. The U.S. Court of Appeals for the Second Circuit reversed, holding that the groups had standing based on a reasonable fear of injury and costs incurred to avoid that injury.
Do respondents have Article III standing to seek prospective relief under the FISA?
Legal provision: Article III
No. Justice Samuel A. Alito, writing for a 5-4 majority, reversed and remanded for further proceedings. The Court held that the respondents did not have standing under Article III of the U.S. Constitution because no injury occurred. Claiming a reasonable likelihood that their communications would be intercepted under FISA is not enough to show future injury for standing purposes. The Court also refused to acknowledge a present injury stemming from the respondents’ choice to take costly measures to protect their confidential communications.
Justice Stephen G. Breyer dissented, arguing that the future harm to respondents is not speculative and therefore should be sufficient to establish standing. Since there is a high probability that the government will intercept at least some of the respondents’ communications, the respondents should have standing to bring the suit. Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor, and Justice Elena Kagan joined in the dissent.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
JAMES R. CLAPPER, Jr., DIRECTOR OF NATIONAL INTELLIGENCE, et al., PETITIONERS v. AMNESTY INTERNATIONAL USA et al.
on writ of certiorari to the united states court of appeals for the second circuit
[February 26, 2013]
Justice Alito delivered the opinion of the Court.
Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U. S. C. §1881a (2006 ed., Supp. V), allows the Attorney General and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not “United States persons” 1 and are reasonably believed to be located outside the United States. Before doing so, the Attorney General and the Director of National Intelligence normally must obtain the Foreign Intelligence Surveillance Court’s approval. Respondents are United States persons whose work, they allege, requires them to engage in sensitive international communications with individuals who they believe are likely targets of surveillance under §1881a. Respondents seek a declaration that §1881a is unconstitutional, as well as an injunction against §1881a-authorized surveillance. The question before us is whether respondents have Article III standing to seek this prospective relief.
Respondents assert that they can establish injury in fact because there is an objectively reasonable likelihood that their communications will be acquired under §1881a at some point in the future. But respondents’ theory of future injury is too speculative to satisfy the wellestablished requirement that threatened injury must be “certainly impending.” E.g., Whitmore v. Arkansas, 495 U. S. 149, 158 (1990) . And even if respondents could demonstrate that the threatened injury is certainly impending, they still would not be able to establish that this injury is fairly traceable to §1881a. As an alternative argument, respondents contend that they are suffering present injury because the risk of §1881a-authorized surveillance already has forced them to take costly and burdensome measures to protect the confidentiality of their international communications. But respondents cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending. We therefore hold that respondents lack Article III standing.I A
In 1978, after years of debate, Congress enacted the Foreign Intelligence Surveillance Act (FISA) to authorize and regulate certain governmental electronic surveillance of communications for foreign intelligence purposes. See 92Stat. 1783, 50 U. S. C. §1801 et seq.; 1 D. Kris & J. Wilson, National Security Investigations & Prosecutions §§3.1, 3.7 (2d ed. 2012) (hereinafter Kris & Wilson). In enacting FISA, Congress legislated against the backdrop of our decision in United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U. S. 297 (1972) (Keith), in which we explained that the standards and procedures that law enforcement officials must follow when conducting “surveillance of ‘ordinary crime’ ” might not be required in the context of surveillance conducted for domestic national-security purposes. Id., at 322–323. Although the Keith opinion expressly disclaimed any ruling “on the scope of the President’s surveillance power with respect to the activities of foreign powers,” id., at 308, it implicitly suggested that a special framework for foreign intelligence surveillance might be constitutionally permissible, see id., at 322–323.
In constructing such a framework for foreign intelligence surveillance, Congress created two specialized courts. In FISA, Congress authorized judges of the Foreign Intelligence Surveillance Court (FISC) to approve electronic surveillance for foreign intelligence purposes if there is probable cause to believe that “the target of the electronic surveillance is a foreign power or an agent of a foreign power,” and that each of the specific “facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.” §105(a)(3), 92Stat. 1790; see §§105(b)(1)(A), (b)(1)(B), ibid.; 1 Kris & Wilson §7:2, at 194–195; id., §16:2, at 528–529. Additionally, Congress vested the Foreign Intelligence Surveillance Court of Review with jurisdiction to review any denials by the FISC of applications for electronic surveillance. §103(b), 92Stat. 1788; 1 Kris & Wilson §5:7, at 151–153.
In the wake of the September 11th attacks, President George W. Bush authorized the National Security Agency (NSA) to conduct warrantless wiretapping of telephone and e-mail communications where one party to the communication was located outside the United States and a participant in “the call was reasonably believed to be a member or agent of al Qaeda or an affiliated terrorist organization,” App. to Pet. for Cert. 403a. See id., at 263a–265a, 268a, 273a–279a, 292a–293a; American Civil Liberties Union v. NSA, 493 F. 3d 644, 648 (CA6 2007) (ACLU) (opinion of Batchelder, J.). In January 2007, the FISC issued orders authorizing the Government to target international communications into or out of the United States where there was probable cause to believe that one participant to the communication was a member or agent of al Qaeda or an associated terrorist organization. App. to Pet. for Cert. 312a, 398a, 405a. These FISC orders subjected any electronic surveillance that was then occurring under the NSA’s program to the approval of the FISC. Id., at 405a; see id., at 312a, 404a. After a FISC Judge subsequently narrowed the FISC’s authorization of such surveillance, however, the Executive asked Congress to amend FISA so that it would provide the intelligence community with additional authority to meet the challenges of modern technology and international terrorism. Id., at 315a–318a, 331a–333a, 398a; see id., at 262a, 277a–279a, 287a.
When Congress enacted the FISA Amendments Act of 2008 (FISA Amendments Act), 122Stat. 2436, it left much of FISA intact, but it “established a new and independent source of intelligence collection authority, beyond that granted in traditional FISA.” 1 Kris & Wilson §9:11, at 349–350. As relevant here, §702 of FISA, 50 U. S. C. §1881a (2006 ed., Supp. V), which was enacted as part of the FISA Amendments Act, supplements pre-existing FISA authority by creating a new framework under which the Government may seek the FISC’s authorization of certain foreign intelligence surveillance targeting the communications of non-U. S. persons located abroad. Unlike traditional FISA surveillance, §1881a does not require the Government to demonstrate probable cause that the target of the electronic surveillance is a foreign power or agent of a foreign power. Compare §§1805(a)(2)(A), (a)(2)(B), with §§1881a(d)(1), (i)(3)(A); 638 F. 3d 118, 126 (CA2 2011); 1 Kris & Wilson §16:16, at 584. And, unlike traditional FISA, §1881a does not require the Government to specify the nature and location of each of the particular facilities or places at which the electronic surveillance will occur. Compare §§1805(a)(2)(B), (c)(1) (2006 ed. and Supp. V), with §§1881a(d)(1), (g)(4), (i)(3)(A); 638 F. 3d, at 125–126; 1 Kris & Wilson §16:16, at 585. 2
The present case involves a constitutional challenge to §1881a. Surveillance under §1881a is subject to statutory conditions, judicial authorization, congressional supervision, and compliance with the Fourth Amendment. Section 1881a provides that, upon the issuance of an order from the Foreign Intelligence Surveillance Court, “the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year . . . , the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” §1881a(a). Surveillance under §1881a may not be intentionally targeted at any person known to be in the United States or any U. S. person reasonably believed to be located abroad. §§1881a(b)(1)–(3); see also §1801(i). Additionally, acquisitions under §1881a must comport with the Fourth Amendment. §1881a(b)(5). Moreover, surveillance under §1881a is subject to congressional oversight and several types of Executive Branch review. See §§1881a(f)(2), (l); Amnesty Int’l USA v. McConnell, 646 F. Supp. 2d 633, 640–641 (SDNY 2009).
Section 1881a mandates that the Government obtain the Foreign Intelligence Surveillance Court’s approval of “targeting” procedures, “minimization” procedures, and a governmental certification regarding proposed surveillance. §§1881a(a), (c)(1), (i)(2), (i)(3). Among other things, the Government’s certification must attest that (1) procedures are in place “that have been approved, have been submitted for approval, or will be submitted with the certification for approval by the [FISC] that are reasonably designed” to ensure that an acquisition is “limited to targeting persons reasonably believed to be located outside” the United States; (2) minimization procedures adequately restrict the acquisition, retention, and dissemination of nonpublic information about unconsenting U. S. persons, as appropriate; (3) guidelines have been adopted to ensure compliance with targeting limits and the Fourth Amendment; and (4) the procedures and guidelines referred to above comport with the Fourth Amendment. §1881a(g)(2); see §1801(h).
The Foreign Intelligence Surveillance Court’s role includes determining whether the Government’s certification contains the required elements. Additionally, the Court assesses whether the targeting procedures are “reasonably designed” (1) to “ensure that an acquisition . . . is limited to targeting persons reasonably believed to be located outside the United States” and (2) to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known . . . to be located in the United States.” §1881a(i)(2)(B). The Court analyzes whether the minimization procedures “meet the definition of minimization procedures under section 1801(h) . . . , as appropriate.” §1881a(i)(2)(C). The Court also assesses whether the targeting and minimization procedures are consistent with the statute and the Fourth Amendment. See §1881a(i)(3)(A). 3B
Respondents are attorneys and human rights, labor, legal, and media organizations whose work allegedly requires them to engage in sensitive and sometimes privileged telephone and e-mail communications with colleagues, clients, sources, and other individuals located abroad. Respondents believe that some of the people with whom they exchange foreign intelligence information are likely targets of surveillance under §1881a. Specifically, respondents claim that they communicate by telephone and e-mail with people the Government “believes or believed to be associated with terrorist organizations,” “people located in geographic areas that are a special focus” of the Government’s counterterrorism or diplomatic efforts, and activists who oppose governments that are supported by the United States Government. App. to Pet. for Cert. 399a.
Respondents claim that §1881a compromises their ability to locate witnesses, cultivate sources, obtain information, and communicate confidential information to their clients. Respondents also assert that they “have ceased engaging” in certain telephone and e-mail conversations. Id., at 400a. According to respondents, the threat of surveillance will compel them to travel abroad in order to have in-person conversations. In addition, respondents declare that they have undertaken “costly and burdensome measures” to protect the confidentiality of sensitive communications. Ibid.C
On the day when the FISA Amendments Act was enacted, respondents filed this action seeking (1) a declaration that §1881a, on its face, violates the Fourth Amendment, the First Amendment, Article III, and separation-of-powers principles and (2) a permanent injunction against the use of §1881a. Respondents assert what they characterize as two separate theories of Article III standing. First, they claim that there is an objectively reasonable likelihood that their communications will be acquired under §1881a at some point in the future, thus causing them injury. Second, respondents maintain that the risk of surveillance under §1881a is so substantial that they have been forced to take costly and burdensome measures to protect the confidentiality of their international communications; in their view, the costs they have incurred constitute present injury that is fairly traceable to §1881a.
After both parties moved for summary judgment, the District Court held that respondents do not have standing. McConnell, 646 F. Supp. 2d, at 635. On appeal, however, a panel of the Second Circuit reversed. The panel agreed with respondents’ argument that they have standing due to the objectively reasonable likelihood that their communications will be intercepted at some time in the future. 638 F. 3d, at 133, 134, 139. In addition, the panel held that respondents have established that they are suffering “present injuries in fact—economic and professional harms—stemming from a reasonable fear of future harmful government conduct.” Id., at 138. The Second Circuit denied rehearing en banc by an equally divided vote. 667 F. 3d 163 (2011).
Because of the importance of the issue and the novel view of standing adopted by the Court of Appeals, we granted certiorari, 566 U. S. ___ (2012), and we now reverse.II
Article III of the Constitution limits federal courts’ jurisdiction to certain “Cases” and “Controversies.” As we have explained, “[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 341 (2006) (internal quotation marks omitted); Raines v. Byrd, 521 U. S. 811, 818 (1997) (internal quotation marks omitted); see, e.g., Summers v. Earth Island Institute, 555 U. S. 488 –493 (2009). “One element of the case-or-controversy requirement” is that plaintiffs “must establish that they have standing to sue.” Raines, supra, at 818; see also Summers, supra, at 492–493; DaimlerChrysler Corp., supra, at 342; Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992) .
The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches. Summers, supra, at 492–493; Daimler-Chrysler Corp., supra, at 341–342, 353; Raines, supra, at 818–820; Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464 –474 (1982); Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208 –222 (1974). In keeping with the purpose of this doctrine, “[o]ur standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Raines, supra, at 819–820; see Valley Forge Christian College, supra, at 473–474; Schlesinger, supra, at 221–222. “Relaxation of standing requirements is directly related to the expansion of judicial power,” United States v. Richardson, 418 U. S. 166, 188 (1974) (Powell, J., concurring); see also Summers, supra, at 492–493; Schlesinger, supra, at 222, and we have often found a lack of standing in cases in which the Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs, see, e.g., Richardson, supra, at 167–170 (plaintiff lacked standing to challenge the constitutionality of a statute permitting the Central Intelligence Agency to account for its expenditures solely on the certificate of the CIA Director); Schlesinger, supra, at 209–211 (plaintiffs lacked standing to challenge the Armed Forces Reserve membership of Members of Congress); Laird v. Tatum, 408 U. S. 1 –16 (1972) (plaintiffs lacked standing to challenge an Army intelligence-gathering program).
To establish Article III standing, an injury must be “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Monsanto Co. v. Geertson Seed Farms, 561 U. S. ___, ___ (2010) (slip op., at 7); see also Summers, supra, at 493; Defenders of Wildlife, 504 U. S., at 560–561. “Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes—that the injury is certainly impending.” Id., at 565, n. 2 (internal quotation marks omitted). Thus, we have repeatedly reiterated that “threatened injury must be certainly impending to constitute injury in fact,” and that “[a]llegations of possible future injury” are not sufficient. Whitmore, 495 U. S., at 158 (emphasis added; internal quotation marks omitted); see also Defenders of Wildlife, supra, at 565, n. 2, 567, n. 3; see DaimlerChrysler Corp., supra, at 345; Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 190 (2000) ; Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979) .III A
Respondents assert that they can establish injury in fact that is fairly traceable to §1881a because there is an objectively reasonable likelihood that their communications with their foreign contacts will be intercepted under §1881a at some point in the future. This argument fails. As an initial matter, the Second Circuit’s “objectively reasonable likelihood” standard is inconsistent with our requirement that “threatened injury must be certainly impending to constitute injury in fact.” Whitmore, supra, at 158 (internal quotation marks omitted); see also DaimlerChrysler Corp., supra, at 345; Laidlaw, supra, at 190; Defenders of Wildlife, supra, at 565, n. 2; Babbitt, supra, at 298. Furthermore, respondents’ argument rests on their highly speculative fear that: (1) the Government will decide to target the communications of non-U. S. persons with whom they communicate; (2) in doing so, the Government will choose to invoke its authority under §1881a rather than utilizing another method of surveillance; (3) the Article III judges who serve on the Foreign Intelligence Surveillance Court will conclude that the Government’s proposed surveillance procedures satisfy §1881a’s many safeguards and are consistent with the Fourth Amendment; (4) the Government will succeed in intercepting the communications of respondents’ contacts; and (5) respondents will be parties to the particular communications that the Government intercepts. As discussed below, respondents’ theory of standing, which relies on a highly attenuated chain of possibilities, does not satisfy the requirement that threatened injury must be certainly impending. See Summers, supra, at 496 (rejecting a standing theory premised on a speculative chain of possibilities); Whitmore, supra, at 157–160 (same). Moreover, even if respondents could demonstrate injury in fact, the second link in the above-described chain of contingencies—which amounts to mere speculation about whether surveillance would be under §1881a or some other authority—shows that respondents cannot satisfy the requirement that any injury in fact must be fairly traceable to §1881a.
First, it is speculative whether the Government will imminently target communications to which respondents are parties. Section 1881a expressly provides that respondents, who are U. S. persons, cannot be targeted for surveillance under §1881a. See §§1881a(b)(1)–(3); 667 F. 3d, at 173 (Raggi, J., dissenting from denial of rehearing en banc). Accordingly, it is no surprise that respondents fail to offer any evidence that their communications have been monitored under §1881a, a failure that substantially undermines their standing theory. See ACLU, 493 F. 3d, at 655–656, 673–674 (opinion of Batchelder, J.) (concluding that plaintiffs who lacked evidence that their communications had been intercepted did not have standing to challenge alleged NSA surveillance). Indeed, respondents do not even allege that the Government has sought the FISC’s approval for surveillance of their communications. Accordingly, respondents’ theory necessarily rests on their assertion that the Government will target other individuals—namely, their foreign contacts.
Yet respondents have no actual knowledge of the Government’s §1881a targeting practices. Instead, respondents merely speculate and make assumptions about whether their communications with their foreign contacts will be acquired under §1881a. See 667 F. 3d, at 185–187 (opinion of Raggi, J.). For example, journalist Christopher Hedges states: “I have no choice but to assume that any of my international communications may be subject to government surveillance, and I have to make decisions . . . in light of that assumption.” App. to Pet. for Cert. 366a (emphasis added and deleted). Similarly, attorney Scott McKay asserts that, “[b]ecause of the [FISA Amendments Act], we now have to assume that every one of our international communications may be monitored by the government.” Id., at 375a (emphasis added); see also id., at 337a, 343a–344a, 350a, 356a. “The party invoking federal jurisdiction bears the burden of establishing” standing—and, at the summary judgment stage, such a party “can no longer rest on . . . ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts.’ ” Defenders of Wildlife, 504 U. S., at 561. Respondents, however, have set forth no specific facts demonstrating that the communications of their foreign contacts will be targeted. Moreover, because §1881a at most authorizes—but does not mandate or direct—the surveillance that respondents fear, respondents’ allegations are necessarily conjectural. See United Presbyterian Church in U. S. A. v. Reagan, 738 F. 2d 1375, 1380 (CADC 1984) (Scalia, J.); 667 F. 3d, at 187 (opinion of Raggi, J.). Simply put, respondents can only speculate as to how the Attorney General and the Director of National Intelligence will exercise their discretion in determining which communications to target. 4
Second, even if respondents could demonstrate that the targeting of their foreign contacts is imminent, respondents can only speculate as to whether the Government will seek to use §1881aauthorized surveillance (rather than other methods) to do so. The Government has numerous other methods of conducting surveillance, none of which is challenged here. Even after the enactment of the FISA Amendments Act, for example, the Government may still conduct electronic surveillance of persons abroad under the older provisions of FISA so long as it satisfies the applicable requirements, including a demonstration of probable cause to believe that the person is a foreign power or agent of a foreign power. See §1805. The Government may also obtain information from the intelligence services of foreign nations. Brief for Petitioners 33. And, although we do not reach the question, the Government contends that it can conduct FISA-exempt human and technical surveillance programs that are governed by Executive Order 12333. See Exec. Order No. 12333, §§1.4, 2.1–2.5, 3 CFR 202, 210–212 (1981), reprinted as amended, note following 50 U. S. C. §401, pp. 543, 547–548. Even if respondents could demonstrate that their foreign contacts will imminently be targeted—indeed, even if they could show that interception of their own communications will imminently occur—they would still need to show that their injury is fairly traceable to §1881a. But, because respondents can only speculate as to whether any (asserted) interception would be under §1881a or some other authority, they cannot satisfy the “fairly traceable” requirement.
Third, even if respondents could show that the Government will seek the Foreign Intelligence Surveillance Court’s authorization to acquire the communications of respondents’ foreign contacts under §1881a, respondents can only speculate as to whether that court will authorize such surveillance. In the past, we have been reluctant to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment. In Whitmore, for example, the plaintiff’s theory of standing hinged largely on the probability that he would obtain federal habeas relief and be convicted upon retrial. In holding that the plaintiff lacked standing, we explained that “[i]t is just not possible for a litigant to prove in advance that the judicial system will lead to any particular result in his case.” 495 U. S., at 159–160; see Defenders of Wildlife, 504 U. S., at 562.
We decline to abandon our usual reluctance to endorse standing theories that rest on speculation about the decisions of independent actors. Section 1881a mandates that the Government must obtain the Foreign Intelligence Surveillance Court’s approval of targeting procedures, minimization procedures, and a governmental certification regarding proposed surveillance. §§1881a(a), (c)(1), (i)(2), (i)(3). The Court must, for example, determine whether the Government’s procedures are “reasonably designed . . . to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons.” §1801(h); see §§1881a(i)(2), (i)(3)(A). And, critically, the Court must also assess whether the Government’s targeting and minimization procedures comport with the Fourth Amendment. §1881a(i)(3)(A).
Fourth, even if the Government were to obtain the Foreign Intelligence Surveillance Court’s approval to target respondents’ foreign contacts under §1881a, it is unclear whether the Government would succeed in acquiring the communications of respondents’ foreign contacts. And fifth, even if the Government were to conduct surveillance of respondents’ foreign contacts, respondents can only speculate as to whether their own communications with their foreign contacts would be incidentally acquired.
In sum, respondents’ speculative chain of possibilities does not establish that injury based on potential future surveillance is certainly impending or is fairly traceable to §1881a. 5B
Respondents’ alternative argument—namely, that they can establish standing based on the measures that they have undertaken to avoid §1881a-authorized surveillance—fares no better. Respondents assert that they are suffering ongoing injuries that are fairly traceable to §1881a because the risk of surveillance under §1881a requires them to take costly and burdensome measures to protect the confidentiality of their communications. Respondents claim, for instance, that the threat of surveillance sometimes compels them to avoid certain e-mail and phone conversations, to “tal[k] in generalities rather than specifics,” or to travel so that they can have in-person conversations. Tr. of Oral Arg. 38; App. to Pet. for Cert. 338a, 345a, 367a, 400a. 6 The Second Circuit panel concluded that, because respondents are already suffering such ongoing injuries, the likelihood of interception under §1881a is relevant only to the question whether respondents’ ongoing injuries are “fairly traceable” to §1881a. See 638 F. 3d, at 133–134; 667 F. 3d, at 180 (opinion of Raggi, J.). Analyzing the “fairly traceable” element of standing under a relaxed reasonableness standard, see 638 F. 3d, at 133–134, the Second Circuit then held that “plaintiffs have established that they suffered present injuries in fact—economic and professional harms—stemming from a reasonable fear of future harmful government conduct,” id., at 138.
The Second Circuit’s analysis improperly allowed respondents to establish standing by asserting that they suffer present costs and burdens that are based on a fear of surveillance, so long as that fear is not “fanciful, paranoid, or otherwise unreasonable.” See id., at 134. This improperly waters down the fundamental requirements of Article III. Respondents’ contention that they have standing because they incurred certain costs as a reasonable reaction to a risk of harm is unavailing—because the harm respondents seek to avoid is not certainly impending. In other words, respondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending. See Pennsylvania v. New Jersey, 426 U. S. 660, 664 (1976) (per curiam); National Family Planning & Reproductive Health Assn., Inc., 468 F. 3d 826, 831 (CADC 2006). Any ongoing injuries that respondents are suffering are not fairly traceable to §1881a.
If the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear. As Judge Raggi accurately noted, under the Second Circuit panel’s reasoning, respondents could, “for the price of a plane ticket, . . . transform their standing burden from one requiring a showing of actual or imminent . . . interception to one requiring a showing that their subjective fear of such interception is not fanciful, irrational, or clearly unreasonable.” 667 F. 3d, at 180 (internal quotation marks omitted). Thus, allowing respondents to bring this action based on costs they incurred in response to a speculative threat would be tantamount to accepting a repackaged version of respondents’ first failed theory of standing. See ACLU, 493 F. 3d, at 656–657 (opinion of Batchelder, J.).
Another reason that respondents’ present injuries are not fairly traceable to §1881a is that even before §1881a was enacted, they had a similar incentive to engage in many of the countermeasures that they are now taking. See id., at 668–670. For instance, respondent Scott McKay’s declaration describes—and the dissent heavily relies on—Mr. McKay’s “knowledge” that thousands of communications involving one of his clients were monitored in the past. App. to Pet. for Cert. 370a; post, at 4, 7–8. But this surveillance was conducted pursuant to FISA authority that predated §1881a. See Brief for Petitioners 32, n. 11; Al-Kidd v. Gonzales, No. 05–cv–93, 2008 WL 5123009 (D Idaho, Dec. 4, 2008). Thus, because the Government was allegedly conducting surveillance of Mr. McKay’s client before Congress enacted §1881a, it is difficult to see how the safeguards that Mr. McKay now claims to have implemented can be traced to §1881a.
Because respondents do not face a threat of certainly impending interception under §1881a, the costs that they have incurred to avoid surveillance are simply the product of their fear of surveillance, 7 and our decision in Laird makes it clear that such a fear is insufficient to create standing. See 408 U. S., at 10–15. The plaintiffs in Laird argued that their exercise of First Amendment rights was being “chilled by the mere existence, without more, of [the Army’s] investigative and data-gathering activity.” Id., at 10. While acknowledging that prior cases had held that constitutional violations may arise from the chilling effect of “regulations that fall short of a direct prohibition against the exercise of First Amendment rights,” the Court declared that none of those cases involved a “chilling effect aris[ing] merely from the individual’s knowledge that a governmental agency was engaged in certain activities or from the individual’s concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual.” Id., at 11. Because “[a]llegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm,” id., at 13–14, the plaintiffs in Laird—and respondents here—lack standing. See ibid.; ACLU, supra, at 661–662 (opinion of Batchelder, J.) (holding that plaintiffs lacked standing because they “allege[d] only a subjective apprehension” of alleged NSA surveillance and “a personal (self-imposed) unwillingness to communicate”); United Presbyterian Church, 738 F. 2d, at 1378 (holding that plaintiffs lacked standing to challenge the legality of an Executive Order relating to surveillance because “the ‘chilling effect’ which is produced by their fear of being subjected to illegal surveillance and which deters them from conducting constitutionally protected activities, is foreclosed as a basis for standing” by Laird).
For the reasons discussed above, respondents’ self-inflicted injuries are not fairly traceable to the Government’s purported activities under §1881a, and their subjective fear of surveillance does not give rise to standing.IV A
Respondents incorrectly maintain that “[t]he kinds of injuries incurred here—injuries incurred because of [respondents’] reasonable efforts to avoid greater injuries that are otherwise likely to flow from the conduct they challenge—are the same kinds of injuries that this Court held to support standing in cases such as” Laidlaw, Meese v. Keene, 481 U. S. 465 (1987) , and Monsanto. Brief for Respondents 24. As an initial matter, none of these cases holds or even suggests that plaintiffs can establish standing simply by claiming that they experienced a “chilling effect” that resulted from a governmental policy that does not regulate, constrain, or compel any action on their part. Moreover, each of these cases was very different from the present case.
In Laidlaw, plaintiffs’ standing was based on “the proposition that a company’s continuous and pervasive illegal discharges of pollutants into a river would cause nearby residents to curtail their recreational use of that waterway and would subject them to other economic and aesthetic harms.” 528 U. S., at 184. Because the unlawful discharges of pollutants were “concededly ongoing,” the only issue was whether “nearby residents”—who were members of the organizational plaintiffs—acted reasonably in refraining from using the polluted area. Id., at 183–184. Laidlaw is therefore quite unlike the present case, in which it is not “concede[d]” that respondents would be subject to unlawful surveillance but for their decision to take preventive measures. See ACLU, 493 F. 3d, at 686 (opinion of Batchelder, J.) (distinguishing Laidlaw on this ground); id., at 689–690 (Gibbons, J., concurring) (same); 667 F. 3d, at 182–183 (opinion of Raggi, J.) (same). Laidlaw would resemble this case only if (1) it were undisputed that the Government was using §1881a-authorized surveillance to acquire respondents’ communications and (2) the sole dispute concerned the reasonableness of respondents’ preventive measures.
In Keene, the plaintiff challenged the constitutionality of the Government’s decision to label three films as “political propaganda.” 481 U. S., at 467. The Court held that the plaintiff, who was an attorney and a state legislator, had standing because he demonstrated, through “detailed affidavits,” that he “could not exhibit the films without incurring a risk of injury to his reputation and of an impairment of his political career.” Id., at 467, 473–475. Unlike the present case, Keene involved “more than a ‘subjective chill’ ” based on speculation about potential governmental action; the plaintiff in that case was unquestionably regulated by the relevant statute, and the films that he wished to exhibit had already been labeled as “political propaganda.” See ibid.; ACLU, 493 F. 3d, at 663–664 (opinion of Batchelder, J.); id., at 691 (Gibbons, J., concurring).
Monsanto, on which respondents also rely, is likewise inapposite. In Monsanto, conventional alfalfa farmers had standing to seek injunctive relief because the agency’s decision to deregulate a variety of genetically engineered alfalfa gave rise to a “significant risk of gene flow to non-genetically-engineered varieties of alfalfa.” 561 U. S., at ___ (slip op., at 13). The standing analysis in that case hinged on evidence that genetically engineered alfalfa “ ‘seed fields [we]re currently being planted in all the major alfalfa seed production areas’ ”; the bees that pollinate alfalfa “ ‘have a range of at least two to ten miles’ ”; and the alfalfa seed farms were concentrated in an area well within the bees’ pollination range. Id., at ___–___, and n. 3 (slip op., at 11–12, and n. 3). Unlike the conventional alfalfa farmers in Monsanto, however, respondents in the present case present no concrete evidence to substantiate their fears, but instead rest on mere conjecture about possible governmental actions.B
Respondents also suggest that they should be held to have standing because otherwise the constitutionality of §1881a could not be challenged. It would be wrong, they maintain, to “insulate the government’s surveillance activities from meaningful judicial review.” Brief for Respondents 60. Respondents’ suggestion is both legally and factually incorrect. First, “ ‘[t]he assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.’ ” Valley Forge Christian College, 454 U. S., at 489; Schlesinger, 418 U. S., at 227; see also Richardson, 418 U. S., at 179; Raines, 521 U. S., at 835 (Souter, J., joined by Ginsburg, J., concurring in judgment).
Second, our holding today by no means insulates §1881a from judicial review. As described above, Congress created a comprehensive scheme in which the Foreign Intelligence Surveillance Court evaluates the Government’s certifications, targeting procedures, and minimization procedures—including assessing whether the targeting and minimization procedures comport with the Fourth Amendment. §§1881a(a), (c)(1), (i)(2), (i)(3). Any dissatisfaction that respondents may have about the Foreign Intelligence Surveillance Court’s rulings—or the congressional delineation of that court’s role—is irrelevant to our standing analysis.
Additionally, if the Government intends to use or disclose information obtained or derived from a §1881a acquisition in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition. §§1806(c), 1806(e), 1881e(a) (2006 ed. and Supp. V). 8 Thus, if the Government were to prosecute one of respondent-attorney’s foreign clients using §1881a-authorized surveillance, the Government would be required to make a disclosure. Although the foreign client might not have a viable Fourth Amendment claim, see, e.g., United States v. Verdugo-Urquidez, 494 U. S. 259, 261 (1990) , it is possible that the monitoring of the target’s conversations with his or her attorney would provide grounds for a claim of standing on the part of the attorney. Such an attorney would certainly have a stronger evidentiary basis for establishing standing than do respondents in the present case. In such a situation, unlike in the present case, it would at least be clear that the Government had acquired the foreign client’s communications using §1881a-authorized surveillance.
Finally, any electronic communications service provider that the Government directs to assist in §1881a surveillance may challenge the lawfulness of that directive before the FISC. §§1881a(h)(4), (6). Indeed, at the behest of a service provider, the Foreign Intelligence Surveillance Court of Review previously analyzed the constitutionality of electronic surveillance directives issued pursuant to a now-expired set of FISA amendments. See In re Directives Pursuant to Section 105B of Foreign Intelligence Surveillance Act, 551 F. 3d 1004, 1006–1016 (2008) (holding that the provider had standing and that the directives were constitutional).* * *
We hold that respondents lack Article III standing because they cannot demonstrate that the future injury they purportedly fear is certainly impending and because they cannot manufacture standing by incurring costs in anticipation of non-imminent harm. We therefore reverse the judgment of the Second Circuit and remand the case for further proceedings consistent with this opinion.
It is so ordered.
1 The term “United States person” includes citizens of the United States, aliens admitted for permanent residence, and certain associations and corporations. 50 U. S. C. §1801(i); see §1881(a).
2 Congress recently reauthorized the FISA Amendments Act for another five years. See 126Stat. 1631.
3 The dissent attempts to downplay the safeguards established by §1881a. See post, at 4 (opinion of Breyer, J.). Notably, the dissent does not directly acknowledge that §1881a surveillance must comport with the Fourth Amendment, see §1881a(b)(5), and that the Foreign Intelligence Surveillance Court must assess whether targeting and minimization procedures are consistent with the Fourth Amendment, see §1881a(i)(3)(A).
4 It was suggested at oral argument that the Government could help resolve the standing inquiry by disclosing to a court, perhaps through an in camera proceeding, (1) whether it is intercepting respondents’ communications and (2) what targeting or minimization procedures it is using. See Tr. of Oral Arg. 13–14, 44, 56. This suggestion is puzzling. As an initial matter, it is respondents’ burden to prove their standing by pointing to specific facts, Lujan v. Defenders of Wildlife, 504 U. S. 555, 561 (1992) , not the Government’s burden to disprove standing by revealing details of its surveillance priorities. Moreover, this type of hypothetical disclosure proceeding would allow a terrorist (or his attorney) to determine whether he is currently under U. S. surveillance simply by filing a lawsuit challenging the Government’s surveillance program. Even if the terrorist’s attorney were to comply with a protective order prohibiting him from sharing the Government’s disclosures with his client, the court’s postdisclosure decision about whether to dismiss the suit for lack of standing would surely signal to the terrorist whether his name was on the list of surveillance targets.
5 Our cases do not uniformly require plaintiffs to demonstrate that it is literally certain that the harms they identify will come about. In some instances, we have found standing based on a “substantial risk” that the harm will occur, which may prompt plaintiffs to reasonably incur costs to mitigate or avoid that harm. Monsanto Co. v. Geertson Seed Farms, 561 U. S. ___, ___ (2010) (slip op., at 11–12). See also Pennell v. City of San Jose, 485 U. S. 1, 8 (1988) ; Blum v. Yaretsky, 457 U. S. 991 –1001 (1982); Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979) . But to the extent that the “substantial risk” standard is relevant and is distinct from the “clearly impending” requirement, respondents fall short of even that standard, in light of the attenuated chain of inferences necessary to find harm here. See supra, at 11–15. In addition, plaintiffs bear the burden of pleading and proving concrete facts showing that the defendant’s actual action has caused the substantial risk of harm. Plaintiffs cannot rely on speculation about “ ‘the unfettered choices made by independent actors not before the court.’ ” Defenders of Wildlife, 504 U. S., at 562.
6 For all the focus on respondents’ supposed need to travel abroad in light of potential §1881a surveillance, respondents cite only one specific instance of travel: an attorney’s trip to New York City to meet with other lawyers. See App. to Pet. for Cert. 352a. This domestic travel had but a tenuous connection to §1881a, because §1881aauthorized acquisitions “may not intentionally target any person known at the time of acquisition to be located in the United States.” §1881a(b)(1); see also 667 F. 3d 163, 202 (CA2 2011) (Jacobs, C. J., dissenting from denial of rehearing en banc); id., at 185 (opinion of Raggi, J. (same)).
7 Although respondents’ alternative theory of standing rests primarily on choices that they have made based on their subjective fear of surveillance, respondents also assert that third parties might be disinclined to speak with them due to a fear of surveillance. See App. to Pet. for Cert. 372a–373a, 352a–353a. To the extent that such assertions are based on anything other than conjecture, see Defenders of Wildlife, 504 U. S., at 560, they do not establish injury that is fairly traceable to §1881a, because they are based on third parties’ subjective fear of surveillance, see Laird, 408 U. S., at 10–14.
8 The possibility of judicial review in this context is not farfetched. In United States v. Damrah, 412 F. 3d 618 (CA6 2005), for example, the Government made a pretrial disclosure that it intended to use FISA evidence in a prosecution; the defendant (unsuccessfully) moved to suppress the FISA evidence, even though he had not been the target of the surveillance; and the Sixth Circuit ultimately held that FISA’s procedures are consistent with the Fourth Amendment. See id., at 622, 623, 625.
SUPREME COURT OF THE UNITED STATES
JAMES R. CLAPPER, Jr., DIRECTOR OF NATIONAL INTELLIGENCE, et al., PETITIONERS v. AMNESTY INTERNATIONAL USA et al.
on writ of certiorari to the united states court of appeals for the second circuit
[February 26, 2013]
Justice Breyer, with whom Justice Ginsburg, Justice Sotomayor, and Justice Kagan join, dissenting.
The plaintiffs’ standing depends upon the likelihood that the Government, acting under the authority of 50 U. S. C. §1881a (2006 ed., Supp. V), will harm them by intercepting at least some of their private, foreign, telephone, or e-mail conversations. In my view, this harm is not “speculative.” Indeed it is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen. This Court has often found the occurrence of similar future events sufficiently certain to support standing. I dissent from the Court’s contrary conclusion.I
Article III specifies that the “judicial Power” of the United States extends only to actual “Cases” and “Controversies.” §2. It thereby helps to ensure that the legal questions presented to the federal courts will not take the form of abstract intellectual problems resolved in the “rarified atmosphere of a debating society” but instead those questions will be presented “in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 472 (1982) (purpose of Article III); Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992) (similar); Babbitt v. Farm Workers, 442 U. S. 289, 297 (1979) (similar).
The Court has recognized that the precise boundaries of the “case or controversy” requirement are matters of “degree . . . not discernible by any precise test.” Ibid. At the same time, the Court has developed a subsidiary set of legal rules that help to determine when the Constitution’s requirement is met. See Lujan, 504 U. S., at 560–561; id., at 583 (Stevens, J., concurring in judgment). Thus, a plaintiff must have “standing” to bring a legal claim. And a plaintiff has that standing, the Court has said, only if the action or omission that the plaintiff challenges has caused, or will cause, the plaintiff to suffer an injury that is “concrete and particularized,” “actual or imminent,” and “redress[able] by a favorable decision.” Id., at 560–561 (internal quotation marks omitted).
No one here denies that the Government’s interception of a private telephone or e-mail conversation amounts to an injury that is “concrete and particularized.” Moreover, the plaintiffs, respondents here, seek as relief a judgment declaring unconstitutional (and enjoining enforcement of) a statutory provision authorizing those interceptions; and, such a judgment would redress the injury by preventing it. Thus, the basic question is whether the injury, i.e., the interception, is “actual or imminent.”II A
Since the plaintiffs fear interceptions of a kind authorized by §1881a, it is important to understand just what kind of surveillance that section authorizes. Congress enacted §1881a in 2008, as an amendment to the pre-existing Foreign Intelligence Surveillance Act of 1978, 50 U. S. C. §1801 et seq. Before the amendment, the Act authorized the Government (acting within the United States) to monitor private electronic communications between the United States and a foreign country if (1) the Government’s purpose was, in significant part, to obtain foreign intelligence information (which includes information concerning a “foreign power” or “territory” related to our “national defense” or “security” or the “conduct of . . . foreign affairs”), (2) the Government’s surveillance target was “a foreign power or an agent of a foreign power,” and (3) the Government used surveillance procedures designed to “minimize the acquisition and retention, and prohibit the dissemination, of” any private information acquired about Americans. §§1801(e), (h), 1804(a).
In addition the Government had to obtain the approval of the Foreign Intelligence Surveillance Court. To do so, it had to submit an application describing (1) each “specific target,” (2) the “nature of the information sought,” and (3) the “type of communications or activities to be subjected to the surveillance.” §1804(a). It had to certify that, in significant part, it sought to obtain foreign intelligence information. Ibid. It had to demonstrate probable cause to believe that each specific target was “a foreign power or an agent of a foreign power.” §§1804(a), 1805(a). It also had to describe instance-specific procedures to be used to minimize intrusions upon Americans’ privacy (compliance with which the court subsequently could assess). §§1804(a), 1805(d)(3).
The addition of §1881a in 2008 changed this prior law in three important ways. First, it eliminated the requirement that the Government describe to the court each specific target and identify each facility at which its surveillance would be directed, thus permitting surveillance on a programmatic, not necessarily individualized, basis. §1881a(g). Second, it eliminated the requirement that a target be a “foreign power or an agent of a foreign power.” Ibid. Third, it diminished the court’s authority to insist upon, and eliminated its authority to supervise, instance-specific privacy-intrusion minimization procedures (though the Government still must use court-approved general minimization procedures). §1881a(e). Thus, using the authority of §1881a, the Government can obtain court approval for its surveillance of electronic communications between places within the United States and targets in foreign territories by showing the court (1) that “a sig-nificant purpose of the acquisition is to obtain foreign intelligence information,” and (2) that it will use general targeting and privacy-intrusion minimization procedures of a kind that the court had previously approved. §1881a(g).B
It is similarly important to understand the kinds of communications in which the plaintiffs say they engage and which they believe the Government will intercept. Plaintiff Scott McKay, for example, says in an affidavit (1) that he is a lawyer; (2) that he represented “Mr. Sami Omar Al-Hussayen, who was acquitted in June 2004 on terrorism charges”; (3) that he continues to represent “Mr. Al-Hussayen, who, in addition to facing criminal charges after September 11, was named as a defendant in several civil cases”; (4) that he represents Khalid Sheik Mohammed, a detainee, “before the Military Commissions at Guantánamo Bay, Cuba”; (5) that in representing these clients he “communicate[s] by telephone and email with people outside the United States, including Mr. Al-Hussayen himself,” “experts, investigators, attorneys, family members . . . and others who are located abroad”; and (6) that prior to 2008 “the U. S. government had intercepted some 10,000 telephone calls and 20,000 email communications involving [his client] Al-Hussayen.” App. to Pet. for Cert. 369a–371a.
Another plaintiff, Sylvia Royce, says in her affidavit (1) that she is an attorney; (2) that she “represent[s] Mohammedou Ould Salahi, a prisoner who has been held at Guantánamo Bay as an enemy combatant”; (3) that, “[i]n connection with [her] representation of Mr. Salahi, [she] receive[s] calls from time to time from Mr. Salahi’s brother, . . . a university student in Germany”; and (4) that she has been told that the Government has threatened Salahi “that his family members would be arrested and mis-treated if he did not cooperate.” Id., at 349a–351a.
The plaintiffs have noted that McKay no longer represents Mohammed and Royce no longer represents Ould Salahi. Brief for Respondents 15, n. 11. But these changes are irrelevant, for we assess standing as of the time a suit is filed, see Davis v. Federal Election Comm’n, 554 U. S. 724, 734 (2008) , and in any event McKay himself continues to represent Al Hussayen, his partner now represents Mohammed, and Royce continues to represent individuals held in the custody of the U. S. military overseas.
A third plaintiff, Joanne Mariner, says in her affidavit (1) that she is a human rights researcher, (2) that “some of the work [she] do[es] involves trying to track down people who were rendered by the CIA to countries in which they were tortured”; (3) that many of those people “the CIA has said are (or were) associated with terrorist organizations”; and (4) that, to do this research, she “communicate[s] by telephone and e-mail with . . . former detainees, lawyers for detainees, relatives of detainees, political activists, journalists, and fixers” “all over the world, including in Jordan, Egypt, Pakistan, Afghanistan, [and] the Gaza Strip.” App. to Pet. for Cert. 343a–344a.
Other plaintiffs, including lawyers, journalists, and human rights researchers, say in affidavits (1) that they have jobs that require them to gather information from foreigners located abroad; (2) that they regularly communicate electronically (e.g., by telephone or e-mail) with foreigners located abroad; and (3) that in these communications they exchange “foreign intelligence information” as the Act defines it. Id., at 334a–375a.III
Several considerations, based upon the record along with commonsense inferences, convince me that there is a very high likelihood that Government, acting under the authority of §1881a, will intercept at least some of the communications just described. 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 States.” See 50 U. S. C. §1801 (2006 ed. and Supp. V); see, e.g., App. to Pet. for Cert. 342a, 366a, 373a–374a.
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. See, e.g., id., at 373a–374a. Journalists and human rights workers have strong similar motives to conduct conversations of this kind. See, e.g., id., at 342a (Declaration of Joanne Mariner, stating that “some of the information [she] exchange[s] by telephone and e-mail relates to terrorism and counterterrorism, and much of the information relates to the foreign affairs of the United States”).
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. See Executive Office of the President, Office of Management and Budget, Statement of Administration Policy on S. 2248, p. 4 (Dec. 17, 2007) (“Part of the value of the [new authority] is to enable the Intelligence Community to collect expeditiously the communications of terrorists in foreign countries who may contact an associate in the United States”). 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. See id., at 1 (“Protection of the American people and American interests at home and abroad requires access to timely, accurate, and insightful intelligence on the capabilities, intentions, and activities of . . . terrorists”).
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.” App. to Pet. for Cert. 370a.
Fourth, the Government has the capacity to conduct electronic surveillance of the kind at issue. To some degree this capacity rests upon technology available to the Government. See 1 D. Kris & J. Wilson, National Security Investigations & Prosecutions §16:6, p. 562 (2d ed. 2012) (“NSA’s technological abilities are legendary”); id., §16:12, at 572–577 (describing the National Security Agency’s capacity to monitor “very broad facilities” such as international switches). See, e.g., Lichtblau & Risen, Spy Agency Mined Vast Data Trove, Officials Report, N. Y. Times, Dec. 24, 2005, p. A1 (describing capacity to trace and to analyze large volumes of communications into and out of the United States); Lichtblau & Shane, Bush is Pressed Over New Report on Surveillance, N. Y. Times, May 12, 2006, p. A1 (reporting capacity to obtain access to records of many, if not most, telephone calls made in the United States); Priest & Arkin, A Hidden World, Growing Beyond Control, Washington Post, July 19, 2010, p. A1 (reporting that every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, telephone calls and other types of communications). Cf. Statement of Administration Policy on S. 2248, supra, at 3 (rejecting a provision of the Senate bill that would require intelligence analysts to count “the number of persons located in the United States whose communications were reviewed” as “impossible to implement” (internal quotation marks omitted)). This capacity also includes the Government’s authority to obtain the kind of information here at issue from private carriers such as AT&T and Verizon. See 50 U. S. C. §1881a(h). We are further told by amici that the Government is expanding that capacity. See Brief for Electronic Privacy Information Center et al. as 22–23 (National Security Agency will be able to conduct surveillance of most electronic communications between domestic and foreign points).
Of course, to exercise this capacity the Government must have intelligence court authorization. But the Government rarely files requests that fail to meet the statu-tory criteria. See Letter from Ronald Weich, Assistant Attorney General, to Joseph R. Biden, Jr., 1 (Apr. 30, 2012) (In 2011, of the 1,676 applications to the intelligence court, two were withdrawn by the Government, and the remaining 1,674 were approved, 30 with some mod-ification), online at http://www.justice.gov/nsd/foia/ foia_library/2011fisa-ltr.pdf. (as visited Feb. 22, 2013, and available in Clerk of Court’s case file). As the intelligence court itself has stated, its review under §1881a is “nar-rowly circumscribed.” In re Proceedings Required by §702(i) of the FISA Amendments Act of 2008, No. Misc. 08–01 (Aug. 17, 2008), p. 3. There is no reason to believe that the communications described would all fail to meet the conditions necessary for approval. Moreover, compared with prior law, §1881a simplifies and thus expedites the approval process, making it more likely that the Government will use §1881a to obtain the necessary approval.
The upshot is that (1) similarity of content, (2) strong motives, (3) prior behavior, and (4) capacity all point to a very strong likelihood that the Government will intercept at least some of the plaintiffs’ communications, including some that the 2008 amendment, §1881a, but not the pre-2008 Act, authorizes the Government to intercept.
At the same time, nothing suggests the presence of some special factor here that might support a contrary conclusion. 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.
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 elec-tronic communication to which at least some of the plaintiffs are parties. The majority is wrong when it describes the harm threatened plaintiffs as “speculative.”IV A
The majority more plausibly says that the plaintiffs have failed to show that the threatened harm is “certainly impending.” Ante, at 10 (internal quotation marks omitted). But, as the majority appears to concede, see ante, at 15–16, and n. 5, certainty is not, and never has been, the touchstone of standing. The future is inherently uncertain. Yet federal courts frequently entertain actions for injunctions and for declaratory relief aimed at preventing future activities that are reasonably likely or highly likely, but not absolutely certain, to take place. And that degree of certainty is all that is needed to support standing here.
The Court’s use of the term “certainly impending” is not to the contrary. Sometimes the Court has used the phrase “certainly impending” as if the phrase described a sufficient, rather than a necessary, condition for jurisdiction. See Pennsylvania v. West Virginia, 262 U. S. 553, 593 (1923) (“If the injury is certainly impending that is enough”). See also Babbitt, 442 U. S., at 298 (same). On other occasions, it has used the phrase as if it concerned when, not whether, an alleged injury would occur. Thus, in Lujan, 504 U. S., at 564, n. 2, the Court considered a threatened future injury that consisted of harm that plaintiffs would suffer when they “soon” visited a gov-ernment project area that (they claimed) would suffer environmental damage. The Court wrote that a “mere pro-fession of an intent, some day, to return” to the project area did not show the harm was “imminent,” for “soon” might mean nothing more than “in this lifetime.” Id., at 564–565, n. 2 (internal quotation marks omitted). Similarly, in McConnell v. Federal Election Comm’n, 540 U. S. 93 (2003) , the Court denied standing because the Senator’s future injury (stemming from a campaign finance law) would not affect him until his reelection. That fact, the Court said, made the injury “too remote temporally to satisfy Article III standing.” Id., at 225–226.
On still other occasions, recognizing that “ ‘ imminence’ is concededly a somewhat elastic concept,” Lujan, supra, at 565, n. 2, the Court has referred to, or used (sometimes along with “certainly impending”) other phrases such as “reasonable probability” that suggest less than absolute, or literal certainty. See Babbitt, supra, at 298 (plaintiff “must demonstrate a realistic danger of sustaining a direct injury” (emphasis added)); Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 190 (2000) (“[I]t is the plaintiff’s burden to establish standing by demonstrating that . . . the defendant’s allegedly wrongful behavior will likely occur or continue”). See also Monsanto Co. v. Geertson Seed Farms, 561 U. S. ___, ___ (2010) (slip op., at 11) (“ ‘ “reasonable probability” ’ ” and “substantial risk”); Davis, 554 U. S., at 734 (“realistic and impending threat of direct injury”); MedImmune, Inc. v. Genentech, Inc., 549 U. S. 118, 129 (2007) (“genuine threat of enforcement”); Department of Commerce v. United States House of Representatives, 525 U. S. 316, 333 (1999) (“substantially likely” (internal quotation marks omitted)); Clinton v. City of New York, 524 U. S. 417, 432 (1998) (“sufficient likelihood of economic injury”); Pennell v. San Jose, 485 U. S. 1, 8 (1988) (“realistic danger” (internal quotation marks omitted)); Blum v. Yaretsky, 457 U. S. 991, 1001 (1982) (“quite realistic” threat); Bryant v. Yellen, 447 U. S. 352 –368 (1980) (“likely”); Buckley v. Valeo, 424 U. S. 1, 74 (1976) (per curiam) (“reasonable probability”). Taken together the case law uses the word “certainly” as if it emphasizes, rather than literally defines, the immediately following term “impending.”B 1
More important, the Court’s holdings in standing cases show that standing exists here. The Court has often found standing where the occurrence of the relevant injury was far less certain than here. Consider a few, fairly typical, cases. Consider Pennell, supra. A city ordinance forbade landlords to raise the rent charged to a tenant by more than 8 percent where doing so would work an unreasonably severe hardship on that tenant. Id., at 4–5. A group of landlords sought a judgment declaring the ordinance unconstitutional. The Court held that, to have standing, the landlords had to demonstrate a “ ‘realistic danger of sustaining a direct injury as a result of the statute’s operation.’ ” Id., at 8 (emphasis added). It found that the landlords had done so by showing a likelihood of enforcement and a “probability,” ibid., that the ordinance would make the landlords charge lower rents—even though the landlords had not shown (1) that they intended to raise the relevant rents to the point of causing unreasonably severe hardship; (2) that the tenants would challenge those increases; or (3) that the city’s hearing examiners and arbitrators would find against the landlords. Here, even more so than in Pennell, there is a “realistic danger” that the relevant harm will occur.
Or, consider Blum, supra. A group of nursing home residents receiving Medicaid benefits challenged the constitutionality (on procedural grounds) of a regulation that permitted their nursing home to transfer them to a less desirable home. Id., at 999–1000. Although a Medicaid committee had recommended transfers, Medicaid-initiated transfer had been enjoined and the nursing home itself had not threatened to transfer the plaintiffs. But the Court found “standing” because “the threat of transfers” was “not ‘imaginary or speculative’ ” but “quite realistic,” hence “sufficiently substantial.” Id., at 1000–1001 (quoting Younger v. Harris, 401 U. S. 37, 42 (1971) ). The plaintiffs’ injury here is not imaginary or speculative, but “quite realistic.”
Or, consider Davis, supra. The plaintiff, a candidate for the United States House of Representatives, self-financed his campaigns. He challenged the constitutionality of an election law that relaxed the limits on an opponent’s contributions when a self-financed candidate’s spending itself exceeded certain other limits. His opponent, in fact, had decided not to take advantage of the increased contribution limits that the statute would have allowed. Id., at 734. But the Court nonetheless found standing because there was a “realistic and impending threat,” not a certainty, that the candidate’s opponent would do so at the time the plaintiff filed the complaint. Id., at 734–735. The threat facing the plaintiffs here is as “realistic and impending.”
Or, consider MedImmune, supra. The plaintiff, a patent licensee, sought a declaratory judgment that the patent was invalid. But, the plaintiff did not face an imminent threat of suit because it continued making royalty payments to the patent holder. In explaining why the plaintiff had standing, we (1) assumed that if the plaintiff stopped making royalty payments it would have standing (despite the fact that the patent holder might not bring suit), (2) rejected the Federal Circuit’s “reasonable ap-prehension of imminent suit” requirement, and (3) in-stead suggested that a “genuine threat of enforcement” was likely sufficient. Id., at 128, 129, 132, n. 11 (internal quotation marks omitted). A “genuine threat” is present here.
Moreover, courts have often found probabilistic injuries sufficient to support standing. In Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59 (1978) , for example, the plaintiffs, a group of individuals living near a proposed nuclear powerplant, challenged the constitutionality of the Price-Anderson Act, a statute that limited the plant’s liability in the case of a nuclear accident. The plaintiffs said that, without the Act, the defendants would not build a nuclear plant. And the building of the plant would harm them, in part, by emitting “non-natural radiation into [their] environment.” Id., at 74. The Court found standing in part due to “our generalized concern about exposure to radiation and the apprehension flowing from the uncertainty about the health and genetic consequences of even small emissions.” Ibid. (emphasis added). See also Monsanto Co., supra, at ___ (slip op., at 11–12) (“A substantial risk of gene flow injures respondents in several ways” (emphasis added)).
See also lower court cases, such as Mountain States Legal Foundation v. Glickman, 92 F. 3d 1228, 1234–1235 (CADC 1996) (plaintiffs attack Government decision to limit timber harvesting; standing based upon increased risk of wildfires); Natural Resources Defense Council v. EPA, 464 F. 3d 1, 7 (CADC 2006) (plaintiffs attack Government decision deregulating methyl bromide; standing based upon increased lifetime risk of developing skin cancer); Constellation Energy Commodities Group, Inc. v. FERC, 457 F. 3d 14, 20 (CADC 2006) (standing based on increased risk of nonrecovery inherent in the reduction of collateral securing a debt of uncertain amount); Sutton v. St. Jude Medical S. C., Inc., 419 F. 3d 568, 570–575 (CA6 2005) (standing based on increased risk of harm caused by implantation of defective medical device); Johnson v. Allsteel, Inc., 259 F. 3d 885, 888–891 (CA7 2001) (stand-ing based on increased risk that Employee Retirement Income Security Act beneficiary will not be covered due to increased amount of discretion given to ERISA administrator).
How could the law be otherwise? Suppose that a federal court faced a claim by homeowners that (allegedly) unlawful dam-building practices created a high risk that their homes would be flooded. Would the court deny them standing on the ground that the risk of flood was only 60, rather than 90, percent?
Would federal courts deny standing to a plaintiff in a diversity action who claims an anticipatory breach of contract where the future breach depends on probabilities? The defendant, say, has threatened to load wheat onto a ship bound for India despite a promise to send the wheat to the United States. No one can know for certain that this will happen. Perhaps the defendant will change his mind; perhaps the ship will turn and head for the United States. Yet, despite the uncertainty, the Constitution does not prohibit a federal court from hearing such a claim. See 23 R. Lord, Williston on Contracts §63:35 (4th ed. 2002) (plaintiff may bring an anticipatory breach suit even though the defendant’s promise is one to perform in the future, it has not yet been broken, and defendant may still retract the repudiation). E.g., Wisconsin Power & Light Co. v. Century Indemnity Co., 130 F. 3d 787, 792–793 (CA7 1997) (plaintiff could sue insurer that disclaimed liability for all costs that would be incurred in the future if environmental agencies required cleanup); Combs v. International Ins. Co., 354 F. 3d 568, 598–601 (CA6 2004) (similar).
Would federal courts deny standing to a plaintiff who seeks to enjoin as a nuisance the building of a nearby pond which, the plaintiff believes, will very likely, but not inevitably, overflow his land? See 42 Am. Jur. 2d Injunctions §§2, 5 (2010) (noting that an injunction is ordinarily preventive in character and restrains actions that have not yet been taken, but threaten injury). E.g., Central Delta Water Agency v. United States, 306 F. 3d 938, 947–950 (CA9 2002) (standing to seek injunction where method of operating dam was highly likely to severely hamper plaintiffs’ ability to grow crops); Consolidated Companies, Inc. v. Union Pacific R. Co., 499 F. 3d 382, 386 (CA5 2007) (standing to seek injunction requiring cleanup of land adjacent to plaintiff’s tract because of threat that contaminants might migrate to plaintiff’s tract).
Neither do ordinary declaratory judgment actions always involve the degree of certainty upon which the Court insists here. See, e.g., Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941) (insurance company could seek declaration that it need not pay claim against insured automobile driver who was in an accident even though the driver had not yet been found liable for the accident); Aetna Life Ins. Co. v. Haworth, 300 U. S. 227 –244 (1937) (insurance company could seek declaration that it need not pay plaintiff for disability although plaintiff had not yet sought disability payments). See also, e.g., Associated Indemnity Corp. v. Fairchild Industries, Inc., 961 F. 2d 32, 35–36 (CA2 1992) (insured could seek declaration that insurance company must pay liability even before insured found liable).2
In some standing cases, the Court has found that a reasonable probability of future injury comes accompanied with present injury that takes the form of reasonable efforts to mitigate the threatened effects of the future injury or to prevent it from occurring. Thus, in Monsanto Co., 561 U. S., at ___ (slip op., at 11–14) plaintiffs, a group of conventional alfalfa growers, challenged an agency decision to deregulate genetically engineered alfalfa. They claimed that deregulation would harm them because their neighbors would plant the genetically engineered seed, bees would obtain pollen from the neighbors’ plants, and the bees would then (harmfully) contaminate their own conventional alfalfa with the genetically modified gene. The lower courts had found a “reasonable probability” that this injury would occur. Ibid. (internal quotation marks omitted).
Without expressing views about that probability, we found standing because the plaintiffs would suffer present harm by trying to combat the threat. Ibid. The plaintiffs, for example, “would have to conduct testing to find out whether and to what extent their crops have been contaminated.” Id., at ___ (slip op., at 12). And they would have to take “measures to minimize the likelihood of potential contamination and to ensure an adequate supply of non-genetically-engineered alfalfa.” Ibid. We held that these “harms, which [the plaintiffs] will suffer even if their crops are not actually infected with” the genetically modified gene, “are sufficiently concrete to satisfy the injury-in-fact prong of the constitutional standing analysis.” Id., at ___ (slip op., at 13).
Virtually identical circumstances are present here. Plaintiff McKay, for example, points out that, when he communicates abroad about, or in the interests of, a client (e.g., a client accused of terrorism), he must “make an assessment” whether his “client’s interests would be compromised” should the Government “acquire the communications.” App. to Pet. for Cert. 375a. If so, he must either forgo the communication or travel abroad. Id., at 371a–372a (“I have had to take measures to protect the confidentiality of information that I believe is particularly sensitive,” including “travel that is both time-consuming and expensive”).
Since travel is expensive, since forgoing communication can compromise the client’s interests, since McKay’s assessment itself takes time and effort, this case does not differ significantly from Monsanto. And that is so whether we consider the plaintiffs’ present necessary expenditure of time and effort as a separate concrete, particularized, imminent harm, or consider it as additional evidence that the future harm (an interception) is likely to occur. See also Friends of the Earth, Inc., 528 U. S., at 183–184 (holding that plaintiffs who curtailed their recreational activities on a river due to reasonable concerns about the effect of pollutant discharges into that river had standing); Meese v. Keene, 481 U. S. 465, 475 (1987) (stating that “the need to take . . . affirmative steps to avoid the risk of harm . . . constitutes a cognizable injury”).3
The majority cannot find support in cases that use the words “certainly impending” to deny standing. While I do not claim to have read every standing case, I have examined quite a few, and not yet found any such case. The majority refers to Whitmore v. Arkansas, 495 U. S. 149 (1990) . But in that case the Court denied standing to a prisoner who challenged the validity of a death sentence given to a different prisoner who refused to challenge his own sentence. The plaintiff feared that in the absence of an appeal, his fellow prisoner’s death sentence would be missing from the State’s death penalty database and thereby skew the database against him, making it less likely his challenges to his own death penalty would succeed. The Court found no standing. Id., at 161. But the fellow prisoner’s lack of appeal would have harmed the plaintiff only if (1) the plaintiff separately obtained federal habeas relief and was then reconvicted and resentenced to death, (2) he sought review of his new sentence, and (3) during that review, his death sentence was affirmed only because it was compared to an artificially skewed database. Id., at 156–157. These events seemed not very likely to occur.
In DaimlerChrysler Corp. v. Cuno, 547 U. S. 332 (2006) , taxpayers challenged the constitutionality of a tax break offered by state and local governments to a car manufacturer. We found no standing. But the plaintiffs would have suffered resulting injury only if that the tax break had depleted state and local treasuries and the legislature had responded by raising their taxes. Id., at 344.
In Lujan, the case that may come closest to supporting the majority, the Court also found no standing. But, as I pointed out, supra, at 11, Lujan is a case where the Court considered when, not whether, the threatened harm would occur. 504 U. S., at 564, n. 2. The relevant injury there consisted of a visit by environmental group’s members to a project site where they would find (unlawful) environmental depredation. Id., at 564. The Court pointed out that members had alleged that they would visit the project sites “soon.” But it wrote that “soon” might refer to almost any time in the future. Ibid., n. 2. By way of contrast, the ongoing threat of terrorism means that here the relevant interceptions will likely take place imminently, if not now.
The Court has, of course, denied standing in other cases. But they involve injuries less likely, not more likely, to occur than here. In a recent case, Summers v. Earth Island Institute, 555 U. S. 488 (2009) , for example, the plaintiffs challenged a regulation exempting certain timber sales from public comment and administrative appeal. The plaintiffs claimed that the regulations injured them by interfering with their esthetic enjoyment and recreational use of the forests. The Court found this harm too unlikely to occur to support standing. Id., at 496. The Court noted that one plaintiff had not pointed to a specific affected forest that he would visit. The Court concluded that “[t]here may be a chance, but . . . hardly a likelihood,” that the plaintiff’s “wanderings will bring him to a parcel about to be affected by a project unlawfully subject to the regulations.” Id., at 495 (emphasis added).4
In sum, as the Court concedes, see ante, at 15–16, and n. 5, the word “certainly” in the phrase “certainly impending” does not refer to absolute certainty. As our case law demonstrates, what the Constitution requires is something more akin to “reasonable probability” or “high probability.” The use of some such standard is all that is necessary here to ensure the actual concrete injury that the Constitution demands. The considerations set forth in Parts II and III, supra, make clear that the standard is readily met in this case.* * *
While I express no view on the merits of the plaintiffs’ constitutional claims, I do believe that at least some of the plaintiffs have standing to make those claims. I dissent, with respect, from the majority’s contrary conclusion.
ORAL ARGUMENT OF DONALD B. VERRILLI, JR., ON BEHALF OF THE PETITIONERS
Chief Justice John G. Roberts: We'll hear argument first this morning in Case 11-1025, Clapper v. Amnesty International.
Donald B. Verrilli Jr: Mr. Chief Justice, and may it please the Court:
The question in this case is whether Respondents have standing to bring a facial challenge to the 2008 amendments to the Foreign Intelligence Surveillance Act.
Those amendments provide authority to the executive to conduct surveillance targeted at foreign persons located abroad for foreign intelligence purposes.
Along with that grant of authority, Congress imposed statutory protections designed--
Justice Sonia Sotomayor: General, is there anybody who has standing?
As I read your brief, standing would only arise at the moment the Government decided to use the information against someone in a pending case.
To me, that--
Donald B. Verrilli Jr: --Several points, Your Honor--
Justice Sonia Sotomayor: --would seem to say that the act -- if there were a violation; I'm not suggesting there is -- but that if there was a constitutional violation in the interception, that no one could ever stop it until they were charged with a crime, essentially.
Donald B. Verrilli Jr: --Your Honor, under the statute, there are two clear examples of situations in which the individuals would have standing.
The first is if an aggrieved person, someone who is a party to a communication, gets notice that the government intends to introduce information in a proceeding against them.
They have standing.
That standing could include a facial challenge like the one here.
Justice Ruth Bader Ginsburg: General Verrilli, can you be specific on who that person would be?
Because, as I understand it, it's unlikely that, for example, the lawyers in this case would be charged with any criminal offense.
It's more probable that their clients would be; but, according to the government, their clients have no Fourth Amendment rights because they are people who are noncitizens who acted abroad.
So it's hard for me to envision.
I see the theoretical possibility, but I don't see a real person who would be subject to a Federal charge who could raise an objection.
Donald B. Verrilli Jr: Well, if the information were -- if anyone gets notice, including the client, then the lawyer would know, and the lawyer would be in a position at that point to act.
Justice Ruth Bader Ginsburg: So the client is somebody who is abroad and who acted abroad, and is not a U.S. citizen.
Donald B. Verrilli Jr: That's certainly true.
But, in addition, Your Honor, the statute provides that electronic communication service providers can challenge authorizations under the act, so you -- there certainly would be standing in that instance.
There was such a case.
Justice Ruth Bader Ginsburg: How likely is it that a service provider would object?
Donald B. Verrilli Jr: Well, the service provider did object to the immediate statutory predecessor to the 2008 amendments.
And the FISA court litigated that constitutional challenge.
So there's a concrete context there in which it arises.
But even -- but beyond that--
Justice Ruth Bader Ginsburg: And the litigation was unsuccessful.
Donald B. Verrilli Jr: --Well, that's right.
The Court found there was no Fourth Amendment violation there.
But I think the point here, Your Honor, is -- the key point is this, that the -- in a normal case, a plaintiff would challenge the application of the authority to that plaintiff.
In a situation like this one, we acknowledge that it may be difficult for a plaintiff to do so because an -- a challenge to the application gets into classified information pretty quickly.
I think what the Respondents have tried to do here is to find a theory of the case that avoids that difficulty.
Justice Ruth Bader Ginsburg: Well, using what you just mentioned, suppose -- just let's suppose that the Court should hold there is standing.
Wouldn't the government then say as far as the merits of the complaint, this information is classified, is a state secret, we can't -- we can't go forward with the litigation?
Donald B. Verrilli Jr: That is a possibility.
Of course, there's a procedure that the executive branch would have to go through, but that's a possibility.
But I don't think we can get to that point, Your Honor, because I do think the key point here is that the Respondents' claims about this statute depend on a Cascade of speculation.
This statute only grants authority.
It doesn't command anything.
And in order for the Respondents to make a claim that they are injured, in fact, by this statute--
Justice Sonia Sotomayor: General, I don't know that you've answered my question.
Perhaps you have, but I just want to make sure that I'm clear.
Given that lawyers are unlikely to be the targets of an investigation, if their conversations would be intercepted, according to you they'd never have standing.
Donald B. Verrilli Jr: --I don't think it's appropriate, Your Honor, to relax the Article III standing requirement of injury in fact based on the reality that the specific applications of this statute may involve classified information.
Justice Antonin Scalia: Mr. Verrilli, we've had cases in the past where it is clear that nobody would have standing to challenge what is brought before this Court.
Donald B. Verrilli Jr: That's exactly right, Justice Scalia.
Justice Antonin Scalia: And we've said that that just proves that under our system of separated powers, it is none of our business.
Donald B. Verrilli Jr: That the Court's authority cannot be invoked in that circumstance.
And the mere fact that a specific application requires getting into classified matters can't change that basic Article III requirement.
Justice Anthony Kennedy: Is the test that you propose that the injury -- I think your brief used the word imminent -- is another way of saying that -- is it unfair to characterize the government's position as saying that you're submitting that the injury must be certain?
Donald B. Verrilli Jr: No.
The key point, I think, is narrower than that, Justice Kennedy.
This is a case in which the speculation is about the government's conduct, not the connection between the government action and an ultimate effect on the Plaintiff.
Justice Anthony Kennedy: Well, let's assume -- let's assume for the moment that the lawyer would be -- that the lawyer would be injured if his communication with the client were intercepted, or at least that he would have standing to prove injury.
Let's assume that for the moment.
If that is an acceptable premise, assume that it is, are you saying that it has to be certain to occur?
And another test is there's a reasonable likelihood, and then we get in the middle, is it a substantial likelihood.
You have to say -- you say imminent.
Donald B. Verrilli Jr: The government conduct being challenged has to either have occurred or be certainly impending.
And here, we have the polar opposite, Your Honor.
I think it is important to think about--
Justice Anthony Kennedy: Certainly impending.
Donald B. Verrilli Jr: --Certainly impending.
That's the language from this Court's opinions.
And I think -- I think, if the Court thinks about it, every single case in which the Court has found standing, there's never been a dispute about whether the government was going to act or not; the dispute was only about the connection between the government action and the plaintiff's injury.
Here, they're fighting about what--
Justice Ruth Bader Ginsburg: General Verrilli, but in this case the Complainant can never know.
I mean, I know you emphasize the speculative nature of this claim, but it's not speculative if the government being given this authority by Congress is going to use it.
Isn't that so?
I mean, are we to assume that--
Donald B. Verrilli Jr: --Yes, that's not speculative, Justice Ginsburg, but what is speculative is the connection between the grant of authority and a claim of injury.
I do think it's important--
Justice Anthony Kennedy: Is it -- you were talking -- you wanted to say there's a cascade of inferences, I think was your phrase.
Donald B. Verrilli Jr: --There's a cascade of speculation--
Justice Anthony Kennedy: You want to tell us that in your view these -- all these inference that we're required to go through, if the Respondents' theory is adopted, you were going to tell us about--
Donald B. Verrilli Jr: --I'd like very much to do that.
Thank you, Your Honor, yes.
First, the Respondents have to speculate about what the intelligence priorities and objectives of the executive branch are.
Second, they have to speculate about how the executive branch officials are going to exercise their judgment to translate those priorities into procedures and procedures that comply with the statutory targeting and minimization requirements.
Third, they have to speculate about the independent judgment of an Article III court assessing the lawfulness of those procedures and assessing whether those procedures comply with the Fourth Amendment.
Justice Ruth Bader Ginsburg: --Is there much of a speculation involved in how -- I think it's only one time, and it was under the pre-amended statute, that the FISA court ever turned down an application.
Donald B. Verrilli Jr: Yes, but that, Your Honor, is, I think, not a fair assessment of the process.
It's really very much an iterative process in which there's a dialogue between the executive branch and the FISA court in which the court can demand more information, raise objections.
Those get worked out, and then there's a final order.
So I don't think it's fair to infer from the fact that there's only one rejection that this -- that it's a process that isn't rigorous.
But, in addition to the speculation I just described, once you get through all that, you still have to speculate about whether the communication that -- whether the persons with whom the Respondents are communicating are going to be targeted, and that Respondents' communications will get picked up and--
Justice Stephen G. Breyer: Well, here is -- I assume that it is an injury for an American speaking in America to have his communication intercepted against his will by the American government.
We take that as a harm; is that right?
Donald B. Verrilli Jr: --It may be a harm, yes.
Justice Stephen G. Breyer: Okay.
So the question is how likely is that to occur?
Donald B. Verrilli Jr: No, I think the question under this Court's cases, Your Honor, is whether the government is going to take an action that makes that certainly impending.
Justice Stephen G. Breyer: All right.
That's why I say certainly -- it might not be a storm tomorrow.
I mean, you know, nothing is certain.
But I see it's some degree of what you say -- some people say certainly, some people say likelihood, etc.
So put to the side.
What I want to know is, we have a declaration of Mr. Scott McKay.
Now, Mr. Scott McKay says he's represented two of the people who are allegedly part of al Qaeda and committed crimes, and he has represented them for some time.
One is in Guantanamo.
Another is charged with various crimes and is subject to many, many civil suits.
In the course of that, he has to phone and has phoned lots of people in Saudi Arabia, in the various Arab states, and in the past the U.S. intercepted some 10,000 telephone calls and 20,000 e-mail communications involving his client.
So isn't it a fair inference, almost pretty certain, maybe about as much as the storm, that if the security agencies are doing their job, they will, in fact, intercept further communications involving this particular individual, the two that he's representing?
Donald B. Verrilli Jr: Actually, Your Honor--
Justice Stephen G. Breyer: And why doesn't that meet the test?
Donald B. Verrilli Jr: --I think that gets to the last speculative inference that needs to be drawn in order for them to make out their chain of causation, and it's this: They have to speculate that whatever surveillance occurs will occur under this authority, as opposed to other forms of lawful authority that they do not challenge.
And Mr. McKay, that situation is a very good example of this.
We point out in footnote 11 at page 32 of our brief that Mr. McKay says, yes, my client was subjected to 10,000 inceptions of phone calls, 20,000 inceptions of e-mails.
Every one of those, it's a matter of public record, was under the authority of FISA before it was amended in 2008--
Justice Stephen G. Breyer: But why can't we get an answer to that question?
I mean, I see your point.
I'm interrupting because I see where you're going.
And it seems to me that, at least, if held in camera, I can't imagine what security it would violate, whether the government were to say, if necessary privately to a judge, would say, no, we do not intend to use this new authority for this purpose.
Donald B. Verrilli Jr: --But he's just--
Justice Stephen G. Breyer: Or it could say the contrary.
And so couldn't we find out whether he has standing there without jeopardizing any concern of national security?
Donald B. Verrilli Jr: --I think you can't get there without establishing that there's a case of controversy.
And they haven't--
Justice Stephen G. Breyer: Well, there is if, in fact, the government is going to use this statute to continue to do some of the 10,000 or 20,000--
Donald B. Verrilli Jr: --But this case is at summary judgment now, and the--
Justice Stephen G. Breyer: --Yes.
Donald B. Verrilli Jr: --Respondents moved for summary judgment based on the declarations that they submitted.
And the declarations that they submitted contain the information I described.
And so the only information that's in front of the Court is making a decision now is information that that surveillance occurred under another authority that still exists and could still be applied--
Chief Justice John G. Roberts: I don't see how that is pertinent.
What you're saying is they don't have standing to challenge program A because they may also be injured under program B.
Do you have an example of a case where we've held that?
Donald B. Verrilli Jr: --I think it's -- I think the problem, Mr. Chief Justice, is redressability, in that the argument of the lawyers is that we have a duty to incur costs to avoid the surveillance, but that duty is triggered by, according to their expert affidavit--
Chief Justice John G. Roberts: Well, there again, it depends how you phrase their injury.
If you phrase their injury as being subject to surveillance under a particular statutory provision that they think is facially invalid, saying that, well, you're not going to get any relief because you're going to be subject to surveillance under a different provision, I mean, they may say, well, we may, or we may not, but we still have the right to cure the injury of being subject to surveillance under 1881a.
Donald B. Verrilli Jr: --But they still have to show a concrete application of the authority they're challenging.
That's what this Court faces--
Justice Antonin Scalia: Do -- do we parse injury that finely?
I mean, the injury, it seems to me, is being overheard.
Does it -- by the government.
Do we say, oh, well, it's one injury to be overheard under this statute, it's another injury to be overheard under another statute?
Do you know any case where we've -- we've cut the baloney that fine?
Donald B. Verrilli Jr: --No, I don't.
But -- but I do think the redressability point is a valid one.
They have to show--
Justice Elena Kagan: General Verrilli--
Justice Antonin Scalia: Well, the thing is they are going to be injured by being overheard.
And you're saying that they will be overheard anyway, and, therefore, by preventing the government from overhearing them under this statute, we're not redressing their grievance, which is being overheard by the government.
Donald B. Verrilli Jr: --That's precisely what I'm saying.
Justice Elena Kagan: --But, General Verrilli, this statute greatly expands the government's surveillance power.
Nobody denies that.
And so if the question from these lawyers' perspective is, what chance do I have of being overheard, and what precautions do I have to take, this statute makes them think about that question in an entirely different way, doesn't it?
Donald B. Verrilli Jr: Well, I think, as compared to -- let me make two points about that.
First, in terms of the expansion of authority, yes, that's fair with respect to the authority that existed immediately preceding the statute.
I actually think -- a bit of context is relevant here -- that what this statute was trying to do is reset the initial balance that Congress struck under FISA in 1978, when the large majority of overseas communications were carried by satellite and, therefore, not within FISA.
And, of course, what--
Justice Elena Kagan: Yes, but if you take the baseline position before this statute and the position after this statute, these lawyers and other people in their situation are going to understand that this is just true, that the government is intercepting more material, and that they have to take greater precautions in order to keep their conversations confidential, if that's what they want to do, which lawyers want to do.
So they're going to take precautions that they wouldn't have had to take the day before this statute was passed, it seems to me, just from a kind of commonsensical point of view.
Donald B. Verrilli Jr: --I don't agree with that, Justice Kagan.
I think -- this statute does not regulate them.
It confers authority on the government.
They take whatever precautions they choose to take based on their beliefs about how that authority's going to be exercised.
That depends on the speculation I described.
What this Court held in Summers is that you have to have a concrete application of the authority in order to meet the minimum constitutional requirement for Article III standing.
Justice Sonia Sotomayor: Now we're back at the same circle we started with, which is the one that Justice Breyer started with.
He pointed to one person under -- who has been surveilled continuously, tens of thousands of interceptions.
Can you really say that the government's not going to target him under this greater authority that it sought just for the purpose of ensuring that it casts a broader net?
Donald B. Verrilli Jr: I think -- I think it is speculation.
I think you do not have a concrete application of this authority against anyone, and therefore you cannot meet the basic Article III requirement of standing that's set forth in Summers.
Justice Elena Kagan: I guess I don't see why, General Verrilli, this case is any different from Monsanto.
In Monsanto, the government deregulates genetically modified alfalfa, says, go plant it.
Now, there were these farmers who were complaining, and they said, we don't know if that will contaminate our crops or not; we think that there's a significant risk that it will contaminate our crops.
Because we think that there's that significant risk, we have to take precautions.
Now, why isn't that exactly what's happening in this case?
We now think, says the -- say the lawyers, that there is a significant risk that our conversations will be surveilled, a risk that didn't exist before.
Because of that significant risk, we have to take precautions of the exact same kind that the farmers in Monsanto took; therefore, there is standing.
Donald B. Verrilli Jr: I think the difference between this case and Monsanto illustrates our point.
If the plaintiff in Monsanto had come into court and said, Congress has enacted a statute that gives the government agency the authority to deregulate genetically modified seeds, we think there is an objectively reasonable likelihood that the government is going to exercise that authority to deregulate alfalfa--
Justice Elena Kagan: I don't see that difference at all, General Verrilli--
Donald B. Verrilli Jr: --and then--
Justice Elena Kagan: --because, in fact, what Monsanto did -- it's not Congress; it's an agency -- but the agency issued a rule saying that farmers could go plant genetically modified crops.
And then there was the question whether, because of that, essentially, delegation of authority, the plaintiffs in that case were going to be burdened.
And the plaintiffs said, you know, we might be harmed, and we have to take precautions in order not to be harmed.
So it's the same thing.
It's a different actor, but it's a delegation of authority and a -- and a fear that that delegation of authority will result in harm leading to a set of precautions.
Donald B. Verrilli Jr: --There is at least two differences, Justice Kagan, with all due respect.
First, there is an exercise of the delegation of authority in Monsanto that is not present here.
Here, there is speculation about how the authority will be exercised.
Second, with respect to the authority, the record in Monsanto showed the seeds were in the ground, and the only question was a question of scientific assessment about the likelihood that the plaintiff farmers' crops were going to be affected, and that was a scientific judgment based on the pollination radius of the bumblebee, whether it would affect their crops.
But what we're talking about here is speculation about how government officials are going to exercise policy judgments to implement the statute and--
Justice Elena Kagan: Well, is it really such speculation, General?
I mean, just imagine that -- yourself in this lawyer's position, and the lawyer says, I'm representing a person associated with a terrorist organization, I'm representing KLM in the case of one of these lawyers, and I'm going to be talking to that person's family members and associates and trying to find out everything that I can.
Now, as a lawyer, would you take precautions, or would you pick up the phone and start writing e-mails to all those people?
Donald B. Verrilli Jr: --If I took precautions, it would be because of a belief that I had to comply with an ethics rule, and the ethics rule would be the cause of me taking those precautions.
It doesn't change the standard.
Justice Elena Kagan: I don't even think it has to do with an ethics rule.
If you're a good lawyer -- forget the ethics rule and how the ethics rules apply.
Are you really going to tell me that you, as a lawyer, would just pick up the phone in the face of this statute and talk to these terrorists' associates?
Donald B. Verrilli Jr: Your Honor, it seems to me that that hypothetical is a variant of exactly the argument that the Court rejected in Summers.
There isn't a concrete application.
In Summers, the Court said, even in a situation where it would be likely that some members of the Sierra Club would be affected by the exercise of authority that the statute conferred, that you cannot -- you do not have a case--
Justice Elena Kagan: In Summers, the Court said--
Donald B. Verrilli Jr: --or controversy absent the exercise of the authority.
Justice Elena Kagan: --Excuse me.
In Summers, the Court said, well, we don't know that this person is just going to stumble upon a piece of land that's affected by this government action.
I asked you a different question.
You're a lawyer representing a terrorist and talking to the terrorist's affiliates, and the question is, is this statute going to make you not use the e-mail in the way that you ordinarily would use the e-mail?
Donald B. Verrilli Jr: Well, given the availability of traditional FISA surveillance, surveillance under Executive Order 12333, surveillance by foreign governments, I don't think it depends on this statute.
But -- but, in any event, whatever the reasonable judgment of a lawyer in these circumstances, there isn't a concrete application of the statute that creates a case or controversy here.
Justice Ruth Bader Ginsburg: You never know.
There may be dozens of concrete applications affecting the Plaintiffs in this case, but we will never know.
Donald B. Verrilli Jr: Well, I do think the problem here, Justice Ginsburg, really is -- the heart of the matter here really is that in a normal lawsuit a plaintiff would challenge the application of a statute, of the authority conferred under the statute.
Here, that would run into classified information.
So the Respondents have tried to plead a theory that allows them to avoid that problem.
But it is inherently based on speculation, and I--
Justice Stephen G. Breyer: Well, you think it's speculation.
The government has a statute that says you can wiretap in the United States organized crime when life is at stake and you show it to a judge.
Then they say, that isn't good enough.
We pass a new statute, and it says, suppression of organized crime, wiretap when you want, without a judge.
Now, a lawyer who represents organized crime says, my clients have been wiretapped under the first statute 400,000 times.
Now, I'll tell you, when the government gets ahold of this second statute, it's going to be a million times, because they want to suppress organized crime.
I'm not saying my clients are guilty, but we all know.
Now, the question, which I haven't thought of before, you are saying no standing, no standing, can't raise it--
Donald B. Verrilli Jr: --In a case like that, the lawyer -- the normal course would be for the lawyer to challenge the application of the statute.
Here, you have the classified information problem.
But I will say--
Justice Stephen G. Breyer: --No, you can't.
You can't do that here.
So -- so what I'm thinking is, he seems to be separate from other people.
He seems very likely to have a concrete injury.
If they -- if they aren't wiretapping the people who are described here, who are they wiretapping?
And they passed this statute in order to have extra authority.
So put those three things together, and they seem to spell mother, perhaps, you know.
Donald B. Verrilli Jr: --No, they don't.
And the other thing I think that's critical here is that I think Congress was sensitive to the probability that you could not have facial challenges of the kind that Respondents want to bring.
And so there is an entire--
Justice Anthony Kennedy: --But you're -- you are saying that the Government has obtained this extraordinarily wide-reaching power and we have extraordinary risks that face this country and the Government's not going to use it.
That's just, it -- it's hard for me to think that the Government isn't using all of the powers at its command under the law--
Donald B. Verrilli Jr: --I'm not--
Justice Anthony Kennedy: --in order to protect this country.
And you -- you want to say: Oh, well, don't worry that it's not happening.
There is another statute.
That -- that's the problem I have with this line of argument.
Donald B. Verrilli Jr: --I -- I'm not saying that at all, Justice Kennedy.
But it remains the case that the way -- that in order for there to be an Article III case or controversy, a concrete application of that authority has to be demonstrated and it hasn't been under the theory of the plaintiffs' case.
Justice Anthony Kennedy: Well, it's Justice Kagan's hypothetical.
The lawyer -- and I don't forget about the -- I think the ethics problem is, is a very substantial one.
I think the lawyer would engage in malpractice if he talked on the telephone with some of these clients, given this statute.
Donald B. Verrilli Jr: And -- and I think it would be the ethics rule that caused the lawyer to take those steps, not the statute.
He would still have the same inferences.
Justice Anthony Kennedy: But it's still the reality.
He still has to change his conduct.
Donald B. Verrilli Jr: I would like to make one more point, if I could, Justice Kennedy, that I think goes to this and then I would like to reserve the balance of my time.
Congress was aware of the difficult that -- of bringing facial challenges, and so Congress put into place an alternative structure of accountability here.
There are -- this is not unbounded authority.
There are targeting requirements, minimization requirements, certification by the highest level -- highest levels of the executive, and there is independent review by an Article III judge to ensure compliance not only with the statute, but also with the Fourth Amendment, and there is ample congressional oversight.
So it's not the case that this is a free-ranging authority at all.
Chief Justice John G. Roberts: Thank you, General.
ORAL ARGUMENT OF JAMEEL JAFFER ON BEHALF OF THE RESPONDENTS
Jameel Jaffer: Mr. Chief Justice, and may it please the Court:
Plaintiffs have standing here because there is a substantial risk that their communications will be acquired under the act and because this substantial risk has effectively compelled them to take immediate measures to protect information that is sensitive or privileged.
Plaintiffs are lawyers, journalists and human rights researchers who routinely engage in communications that the act is designed to allow the Government to acquire.
Plaintiffs communicate, for example, foreign intelligence information, the kind of information that the statute expressly authorizes the Government to collect, to retain and disseminate.
Chief Justice John G. Roberts: Our cases, of course, say, do say “ certainly impending ”, not “ substantial risk ”.
Jameel Jaffer: Well, Your Honor, I think that there is a -- a question even in cases that involve only a future injury, whether “ certainly impending ” is in fact the standard.
But leaving that to the side, this is not a case that involves only an allegation of future injury.
Chief Justice John G. Roberts: No, let's leave that aside.
You have two arguments; one is likelihood of future injury and the other is present obligations or cause.
I want to focus on the former.
Our standard is certainly impending, and you articulated it by saying, substantial risk.
There is obviously a vast difference between those two.
Jameel Jaffer: --Well, I don't think, Your Honor, that the Court has settled on certainly impending.
The cases that the -- the Government cites are cases like -- I think that the one that the Government cites, relies on most heavily is Summers.
But in Summers, the distinction between likelihood and certainly impending was not one that the Court relied on in -- in that decision.
The Court said that plaintiffs couldn't meet even the lower standard.
So I think that the discussion of certainly impending--
Justice Anthony Kennedy: But both in Summers and Monsanto the Government tells us: We knew that the governmental act was occurring, and then once we knew that, the question was substantial risk.
Jameel Jaffer: --Justice Kennedy, the -- the -- the cases that we rely on, Monsanto, Laidlaw, Meese v. Keene, these are cases in which the Court didn't look to the certainly impending standard at all.
The question that the Court asked in those cases was: Is there a substantial risk?
Is there a substantial risk that effectively compels the plaintiffs to act in the way they are -- they are acting?
You are right that the Government points out this distinction in Monsanto.
They say Monsanto is a case in which the Government was actually doing something, was known to -- to be doing something.
But even, in this case, first of all, we know that the Government is using the statute.
They have acknowledged that they are using the statute.
So there -- there is a certainty of Government conduct.
But aside from that, those cases like Monsanto and Laidlaw and Meese are not cases that -- that actually turned on the fact that the Government was doing something.
They are cases that turned on the fact that there was a substantial risk of future injury, and the substantial risk compelled plaintiffs to do something immediately.
Chief Justice John G. Roberts: It's not enough, of course, to know that the Government is using the statute.
The whole question is whether or not your clients have been injured, not whether the statute's being used.
Jameel Jaffer: I -- I agree with that.
I don't think it would be enough for a plaintiff to walk into court and say the Government is using the statute and therefore we have standing.
But our plaintiffs are not in that position.
Justice Sonia Sotomayor: Counsel, I have an issue--
Chief Justice John G. Roberts: I'm sorry, do you want to finish?
If it's all right, could you finish the answer?
Jameel Jaffer: --Sure.
I was just going to say that our -- our plaintiffs have -- have reasons to believe that their own communications will be monitored under the statute.
One relates to the kind of information that they routinely exchange over the phone and by e-mail, foreign intelligence information.
But it's also that -- that plaintiffs communicate with the kinds of people the Government is likely to -- to monitor under the statute.
Justice Antonin Scalia: Does that assessment take into account the fact that a court is going to pass upon the Government's ability to intercept these communications?
Jameel Jaffer: It does, Justice Scalia.
I mean you -- you are right that there is a court that in some sense stands between plaintiffs and the future injury that they -- that they fear.
Justice Antonin Scalia: With the obligation to apply the Fourth Amendment.
Jameel Jaffer: I don't think it's that simple.
The -- the -- the court, the FISA court, is tasked with assessing the reasonableness of targeting and minimization procedures.
But the statute itself forecloses the court from imposing the kinds of limits that plaintiffs think the Fourth Amendment requires.
So for example, the statute itself in section (g)(4) says that the Government is not required to identify the facilities to be monitored.
And the statute itself in defining targeting procedures defines them to be procedures intended to ensure that the targets are outside the United States.
Justice Antonin Scalia: But if as you say those procedures violate the Fourth Amendment, it doesn't matter what the statute says.
Jameel Jaffer: Well, the Court would have to--
Justice Antonin Scalia: If those statutory provisions would produce a violation of the Fourth Amendment, they are null and void, right?
Jameel Jaffer: --Well, I think that's right.
The -- the court--
Justice Antonin Scalia: Okay.
So the FISA Court would presumably know that.
Jameel Jaffer: --Well, I think if that had happened over the last 4 years, the Government wouldn't be seeking reauthorization of the statute now.
But even apart from that--
Justice Ruth Bader Ginsburg: Mr. Jaffer, could you be clear on the expanded authority under the FAA?
As I understood it, it's not like in the old statute, where a target was -- identified and FISA decided whether there was -- the court decided whether there was probable cause.
Under this new statute, the Government doesn't say who is the particular person or the particular location.
So, there isn't that check.
There isn't that check.
Jameel Jaffer: --That's absolutely right, Justice Ginsburg.
There -- the whole point of the statute was to remove those tests, to remove the probable cause requirement, and to remove the facilities requirement, the requirement that the Government identify to the court the facilities to be monitored.
So those are gone.
That's why we use the phrase “ dragnet surveillance ”.
I know the Government doesn't accept that label, but it concedes that the statute allows what it calls categorical surveillance, which -- which -- which is essentially the surveillance that the plaintiffs here are concerned about.
Justice Sonia Sotomayor: --Could you address--
Justice Samuel Alito: If we accept the -- if we assume for the sake of argument that “ certainly impending ” is the, the general standard, if we accepted your other argument, that the plaintiffs have standing because they took preventative measures, wouldn't that undermine completely the -- the “ certainly impending ” standard?
You have a person who is in a situation where there is a certain risk, a certain degree of risk of -- of the person's conversation being intercepted, but it's not certainly impending.
So then the person simply takes some preventative measures, and acquires standing that wouldn't otherwise be present.
Jameel Jaffer: I don't think it would undermine the -- the future injuries standard, Your Honor, for a couple of different reasons.
The first is that “ fairly traceable ”, which is the standard that the Court has used when there is an actual injury, is a standard that does real work.
So if plaintiffs, for example, were acting unreasonably in taking the measures they are taking, if plaintiffs were gratuitously buying flight tickets, they couldn't create standing out of nothing.
It would have to be a reasonable reaction to the risk.
But the other thing is, and this is just to go back to sort of the -- the basic standing--
Justice Antonin Scalia: Excuse me, before we go further.
A reasonable reaction to the risk; but it doesn't have to be a reasonable reaction to a certainly impending risk, does it?
Jameel Jaffer: --You are right, Justice Scalia.
It doesn't, on -- on our theory.
Justice Antonin Scalia: But that's his question.
Doesn't it undermine the certainly impending?
Jameel Jaffer: And the only point I was trying to make is that if there is a distance between these two standards, it's a -- it's a pretty narrow distance.
But the other point I want to make is just that the reason -- to the extent the Court has imposed a higher standard for cases involving only future injury -- and again, we don't concede that the Court has imposed a higher standard, but to the extent it has, it has done so because it wants to assure itself that the future injury is sufficiently concrete to warrant the Court's intervention.
But if there's an actual injury, the Court is assured of concreteness.
The actualness of the injury makes the case concrete on its own.
And so I think that the standards do different work.
I don't think it's a question of an end-run around the imminent standard.
It's a question of the Court assuring itself that there is a concrete case before it.
Justice Elena Kagan: Mr. Jaffer, it seems to me that your -- the government's strongest argument goes something like this -- and I don't think that they would say it in these words, but you have some clients where it actually does seem completely reasonable that they would take precautions, that they would not get on the phone, and that they would not use e-mail in the way that any old person would.
But just -- those clients, these lawyers of terrorists, essentially shouldn't be using that e-mail or getting on the phone anyway.
Even before the FAA was passed, they would have been wise and, indeed, maybe ethically required to use precautions.
So what does the FAA do?
I guess this is a point about redressability, it's a point about--
Jameel Jaffer: Right.
Justice Elena Kagan: --causation, but that seems to me the strongest of the government's arguments.
Jameel Jaffer: Well, Justice Kagan, this is something that the declarations address specifically, the distinction between the burden imposed by FISA, traditional FISA, and the burden imposed by the new statute.
And it's true that the old -- under the old statute, plaintiffs were required to take precautions with respect to a subset of their communications.
And they acknowledge that in their declarations.
But the new statute reaches whole categories of people who couldn't have been reached under FISA.
FISA had a probable cause requirement.
It had to be a foreign agent on one end of the phone.
And so when one of the lawyers in this case was talking to somebody who they thought the government might believe to be a foreign agent, they took those precautions even before.
But now they have to take those precautions -- some of which are very costly -- they have to take those precautions with respect to people who are, for example, witnesses overseas, of journalists overseas or human rights researchers overseas.
As Scott McKay says in his declaration, with respect to every single international communication, I have to make an assessment of the risk that the government--
Justice Elena Kagan: Do you have specifics in the affidavits of things that your clients would have done previously that they cannot do now?
Jameel Jaffer: --Yes, Your Honor.
So, for example -- well, I'm not sure that this goes directly to your question, but in the McKay affidavit, as well as in the Sylvia Royce affidavit -- Sylvia Royce is another one of the attorney plaintiffs in this case -- both of those Plaintiffs discuss the additional burden of the FAA.
They talk about measures that they are taking because of the [= FAA] specifically.
And they mention the kinds of communications they're having with people who could not reasonably be thought to be foreign agents.
Justice Ruth Bader Ginsburg: What other measures besides having to travel to have conversations?
Jameel Jaffer: I think it's a spectrum, Justice Ginsburg.
It begins with just being more circumspect on the telephone, and it goes to, for example, talking in generalities rather than specifics.
Let me see if I can give you actual citations for these.
So -- so -- so, the Plaintiffs have in some cases been deterred from communicating on e-mail or the phone.
Chris Hedges discusses that at 366a of the appendix; Scott McKay discusses it at 371a.
In some instances, the Plaintiffs have talked in generalities rather than specifics.
Sylvia Royce at 352a.
In some instances, it has even required Plaintiffs to travel overseas to gather information that they might otherwise--
Justice Ruth Bader Ginsburg: Well, the travel overseas I understand is the one thing that has a dollar amount attached to it.
Jameel Jaffer: --Right.
Justice Ruth Bader Ginsburg: But these other precautions, being more circumspect in their questions, talking in generalities--
Jameel Jaffer: There is no dollar cost, Justice Ginsburg--
Justice Ruth Bader Ginsburg: --Yes.
Jameel Jaffer: --but there is a professional cost.
And I don't think it's -- it shouldn't be hard to understand the professional cost.
If a lawyer is--
Justice Sonia Sotomayor: --Can you go back to being a little bit more specific on this?
I think I got it.
There is a class of people that they would have spoken to on the phone or e-mailed before because they didn't think they would be covered by other surveillance measures--
Jameel Jaffer: --That's right, Justice Sotomayor.
Justice Sonia Sotomayor: --that were in effect before this act?
Jameel Jaffer: That's right.
Justice Sonia Sotomayor: Can you talk about what kinds of people those are?
Because if the targets are always terrorists--
Jameel Jaffer: --Right.
Under this statute, there's no requirement that the target be a terrorist or a foreign agent, right?
So under this statute, every time, for example, Sylvia Royce has to make a phone call with somebody overseas about the representation of somebody that she is representing, she needs to make an assessment about the sensitivity of the information, about the way that information might be used against her client.
So, for example, if she is talking to a journalist in Afghanistan about the detention of one of her prisoners at Bagram Air Base, that is a conversation that could not plausibly have been picked up under FISA, but it's a conversation that could be picked up under the FAA.
Now, back to--
Chief Justice John G. Roberts: Counsel, it seems to me that the concern you're talking about is present in every area of practice.
If you're representing someone who is being prosecuted, you don't send an e-mail saying, you know, the government hasn't yet asked where you threw the gun, and we've got to be prepared to answer questions on that because, as you know, that's a real probable.
I mean, you don't send messages like that through the e-mails or just talk casually over the phone either.
Jameel Jaffer: --I think that's -- that's right, Mr. Chief Justice, that, to some extent, this exists in every area of practice.
But this is a statute that is focused on gathering foreign intelligence information, and our clients include lawyers who represent defendants charged with foreign intelligence-related crimes.
And this statute, I think for good reason, makes them especially concerned about the communications they are engaged in with people overseas who couldn't have been covered under FISA, but who are covered under this statute.
If I could just address--
Justice Samuel Alito: Could I go back to a question that Justice Breyer asked, where he used the analogy of a lawyer who is representing someone who is alleged to be an organized crime figure.
Suppose you have a case where a lawyer says, I represent so and so, the government thinks this person is an organized crime kingpin, I know the government has a very extensive wiretapping program for people who fall into this category, I want to raise -- I want to challenge the constitutionality of the statute under which some of this wiretapping occurs.
Would that person have stand -- would that lawyer have standing?
Jameel Jaffer: --I think so.
I think so, Justice Alito.
I mean, assuming that the lawyer could establish that there was a substantial risk that his communications would be -- would be monitored, and that the substantial risk had compelled him to take measures immediately, I think that lawyer would have standing.
Whether he would have a claim is a different question, but I think he would have standing.
Justice Samuel Alito: Do you know of any case that holds that?
Jameel Jaffer: Well, I think that -- I don't think it's a novel proposition.
I think that in every one of -- for example, in a case like Skinner, which was a challenge to the rules that allowed for blood tests of railway employees who had been in a -- in accidents, that was a facial challenge brought to the statute, and nobody questioned standing in that case.
Justice Samuel Alito: The Federal wiretapping statute has been around for 40 years.
Has there been a single case that falls into this category that you're talking about?
Jameel Jaffer: No, but I think that that -- that there's a good reason for that, which is under Title III people who are monitored get notice.
There is a notice provision, a general notice provision.
And so it doesn't -- you know, and people don't have to worry that this is going on secretly.
Justice Samuel Alito: Well, there is a notice provision under this statute.
Jameel Jaffer: Only for prosecutions, right?
Only for prosecutions.
And the government has made clear that it's not going to -- that the main purpose of this statute is not to gather evidence for law enforcement--
Justice Stephen G. Breyer: I think the -- which I think is difficult, because it makes this case somewhat unique, so that what you're worried about most is the definition of foreign intelligence information, which defines it to include information with respect to a foreign power or foreign territory that relates to the conduct of foreign affairs.
It's very general.
Jameel Jaffer: --That--
Justice Stephen G. Breyer: And then, the Attorney General can, if he decides there are exigent circumstances, wiretap for a year, anyway, without going to any court, something that isn't true of the ordinary wiretapping.
Now, you say, look, if there is any special group that's going to apply to, that is the group that they wiretapped 10,000 times when they didn't even have that authority.
And the government is saying, maybe, maybe not.
And there, we have an argument.
Is there a way of resolving it?
That is, is it open to the government, if you prevail, and we say, you know, they have this extra broad authority, there is no way to check it through a court, it does cause harm, these are the most likely people to be harmed and there is very good reason, whatever words we use there, to think it will be used for them, that the government -- is there some way the government could say, in camera even, no, we are not doing it?
Here are our procedures.
We are not going to show them to anybody but you, judge.
I mean, is there a way for the government to show that you're wrong--
Jameel Jaffer: --Yes.
Justice Stephen G. Breyer: --and that we're wrong when we think you're right?
Jameel Jaffer: Yes.
Justice Stephen G. Breyer: What?
Jameel Jaffer: If the government were to walk into court either today or after the remand that we are asking for, if the Government were to walk into court either in camera or not and say that plaintiffs will never be monitored under this statute, I think the case would be over.
Plaintiffs -- plaintiffs are here not because they have a general complaint about the statute, but because they're actually -- they're injured by it, and they're -- they -- they--
Chief Justice John G. Roberts: Well, the plaintiffs aren't going to be monitored under the statute.
Other people are, and your concern is collateral, that the plaintiffs' discussions might be picked up.
But the plaintiffs are not going to be monitored as targets.
Jameel Jaffer: --Well, Mr. Chief Justice, I don't think that's exactly right.
I know that the statute says that the Government has to target people abroad, but in targeting people abroad the Government is collecting plaintiffs' communications.
So, you know, this isn't a situation where plaintiffs are entirely--
Chief Justice John G. Roberts: Well, that's why I'm saying under your circumstances -- what you said is the Government could come in and say: We're not going to monitor these people.
Under the statute, you can say that today.
The question is whether or not your clients' conversations can be picked up in an incidental way.
Jameel Jaffer: --Right.
I -- I guess I'm disagreeing with the word “ incidental ”.
It's -- the whole point of this statute was to allow the Government to collect Americans' international communications.
The -- the executive officials threatened a presidential veto when it was proposed that Americans' communications should be segregated in some way, that in the district court the Government was very upfront about this, that the statute's whole purpose was to regulate the -- the surveillance of Americans' international communications.
So there is a sense in which Americans -- the surveillance of Americans is incidental, but it's a--
Justice Samuel Alito: Isn't what you just suggested as a way of resolving this case rather bizarre?
Someone who is -- whom the Government believes to be a top terrorist and a great threat to the country can stop the use of this surveillance by hiring an American lawyer and then having the American lawyer come into court and say -- you know, challenge the constitutionality of this, and the way to resolve the case would be for the Government to go into court and say: Well, we're not going to -- we're not going to target this -- this person whom we believe to be a great security threat?
Jameel Jaffer: --I -- I didn't mean to suggest something like that, Justice Alito.
You know, ultimately, the authority that the Government has claimed under this statute is what requires the plaintiffs to take the measures that they're taking.
And I suppose that if all the Government were to do at this point is to say secretly to a judge,
"We're not actually going to use this against plaintiffs. "
plaintiffs would have to take the same measures they're taking right now.
And they would be injured in exactly the same way.
Justice Sonia Sotomayor: --To that point, you're conceding the Government's position that -- on redressability?
Jameel Jaffer: --No, not at all, Justice--
Justice Sonia Sotomayor: That even if they promise you they weren't going to intercept you under this statute, that you would still take the same measures?
Jameel Jaffer: --No, no, I wasn't talking about the other programs.
I was just saying that plaintiffs' injuries flow from the authority that they're -- that they're claiming under the statute.
And if the Government were to have a secret -- you know, if there were some sort of secret Government memo that said plaintiffs will not in fact be surveilled, their communications won't be picked up, if plaintiffs don't know about that change to the government's authority, they're going to have to take the same measures that they're taking.
Justice Stephen G. Breyer: That's on that branch of your argument, which makes me more nervous than the other branch.
The other branch, they might say something like: We're supposed to minimize risks of catching in surveillance Americans and this is what we do.
And they show that and they say: We go to the FISA court.
Except in these very rare instances where there are emergencies, da, da, da.
And I guess by that point they might be able to reduce the risks to this kind of plaintiff to where it's the same as virtually anybody else or they might be -- be showing it's constitutional.
That's where I -- that's why I ask the question.
I'm not certain of where I am going.
Jameel Jaffer: So -- so maybe it's helpful to think of the -- the cases involving pre-enforcement challenges.
So you think -- think of a case like American Book Sellers Association, which we cite on I think page 55 of our brief, the case in which there's uncertainty about how the Government is going to implement the authority.
Nobody knows whether this particular plaintiff is going to be prosecuted.
In fact, in that case nobody knew whether anybody would be prosecuted.
But the authority was out there and the fact that the authority was out there, the Government hadn't disclaimed it, plaintiffs were required to take immediate measures to conform their behavior to the statute, and plaintiffs -- some of the injury there related to the kind of self-censorship that the Court has always been especially concerned about in First Amendment cases.
All of those things led the Court to find that plaintiffs had standing to bring a pre-enforcement challenge.
And the kind of uncertainty that the Government says is present here, uncertainty about how the Government will actually implement the statute is the same kind of uncertainty that is present in every single pre-enforcement challenge.
Justice Antonin Scalia: Mr. Jaffer, apart -- apart from the Government's power that you point out to conduct some of this surveillance without approval by the FISA court in an emergency situation for 1 year, leaving that aside, I don't see how the rest of your challenge or your challenge to the remainder of this statute can be characterized as a facial challenge, because it necessarily assumes that the FISA court will mistakenly say that there has been no Fourth Amendment violation, doesn't it?
Jameel Jaffer: I don't think that's so, Justice Scalia.
Our concern is not -- not that -- that the FISA court will make mistakes, although it well might.
The concern -- the main concern is that the reasonableness inquiry that the FISA court engages in is a narrowly cabined one.
They court can't say this is unreasonable because you haven't identified the facilities.
They can't say this is unreasonable because you haven't identified a specific target.
Justice Antonin Scalia: Well, it -- it can say it's unreasonable because you have unreasonably limited us.
Don't you think the FISA court is able to say, what we're allowed to look into under this statute does not comport with the Fourth Amendment.
Jameel Jaffer: I think in--
Justice Antonin Scalia: We have to look into more.
Jameel Jaffer: --Right.
I think it's within the realm of -- of the conceivable that -- that the court could essentially subvert the statute in that way or find it unconstitutional, but the Government would not be pressing for reauthorization now, and plaintiffs have to act on the basis of the authority that is delineated in this Federal law.
And plaintiffs see that there's a law that is designed to allow the government to mine Americans' international communications for foreign intelligence information.
The plaintiffs are people who report on war zones or they investigate human rights abuses in places like Syria and Lebanon and the Yemen and the Sudan, places where the government is likely to use this power.
And plaintiffs include people who represent defendants who've been charged in -- in -- terrorism crime and foreign intelligence related crimes.
And so they--
Justice Elena Kagan: I'm sorry.
Jameel Jaffer: --In our view, they act entirely reasonably in taking the measures they're taking and they are effectively compelled in the same way that the plaintiffs in Monsanto, in Laidlaw in -- in -- in Meese [= v.] Keene were effectively compelled to take the measures that they -- that they were taking.
Justice Elena Kagan: Mr. Jaffer, you mentioned your journalist clients.
Do you have any affidavits or anything else in the record to suggest that those journalists have simply not gotten information from third parties that they otherwise would have gotten?
In other words, this would not be a question of what precautions they took and what precautions were reasonable.
Jameel Jaffer: Right.
Justice Elena Kagan: But if you assume that information is the lifeblood of journalism, that their sources and their information has dried up as a result of this statute.
Jameel Jaffer: Yes, Justice Kagan.
Naomi Klein's declaration at page 338A addresses that.
I believe that Chris Hedges' declaration addresses it too, although I don't have a page citation for you.
It's certainly in the lawyers' affidavits that some third parties are less willing to share information, Sylvia Royce, 353A.
So -- so -- so the declarations were filed early, it was a summary judgment motion, they were filed relatively early.
So to some extent, they are making predictions about how third parties will -- will react, but I think it's an entire fair prediction to -- to predict that third parties who believe that the communications are being surveilled will react in the way you just described.
And although it's not in the record, we -- we have spoken to our journalist clients more recently and they have told us that their predictions have actually been realized in some cases.
Just to go to -- to -- to address the -- the -- the Monsanto point -- point once more.
I mean, I understand the Court's -- that the Court has to struggle with the distinction between cases that involve only future injuries and cases that involve present injuries as well.
I think it's just important to recognize that the Court has never found the kinds of present injuries that we are pointing to here to be irrelevant to the analysis.
In Monsanto, in Laidlaw, in Meese, in Camreta, the Court looked to -- looked to the present injuries as well as to the likelihood of -- of -- of future harm.
And we are not making an argument that we are entitled to a lower -- lower standing -- to lower standing requirements or less stringent requirements than the Court has applied in other cases.
Justice Samuel Alito: But in Monsanto, suppose the challenge had been brought by a soybean farmer who said,
"I raise soybeans and people around me raise soybeans, I'm afraid that they're going to start planting genetically modified soybeans, but they haven't done it up to this point, but, you know, this might be something they will do in the future and if they do that, then I'm going to have to take precautions. "
Jameel Jaffer: I think that would be a much harder case than the one that they've brought.
I mean, in part because the Plaintiff would presumably know when -- when the soybeans had been -- had been planted, and the Plaintiff would then have an opportunity to come into court.
And it would be hard to -- to establish, I think, a substantial risk in those circumstances where the Plaintiff couldn't point to any evidence that -- that any action had been taken towards the implementation of this policy that -- that he feared.
But in our case, again, the government has conceded that the statute is being used.
It's conceded -- or it's acknowledged that the statute has been used to collect Americans' communications.
It's true that we don't know that our Plaintiffs specifically have been monitored, and we will never know that.
But that kind of uncertainty was -- was present in Monsanto and in--
Chief Justice John G. Roberts: Maybe it's a difference in how we're using the word monitor.
You do know that your Plaintiffs have not been monitored.
Jameel Jaffer: --Been targeted.
Chief Justice John G. Roberts: What you don't -- well, others have been monitored abroad, right?
Jameel Jaffer: I don't--
Chief Justice John G. Roberts: You're not monitored in the sense that this is the person's e-mail, and that's what we're going to collect information from, right?
Jameel Jaffer: --Well, what -- what happens is that the government identifies some category of targets abroad.
In the course of collecting--
Chief Justice John G. Roberts: Right.
Jameel Jaffer: --those targets' communications, they collect Americans' international communications.
And when they're collecting Americans' international communications, they are monitoring those communications.
The statute allows the government to acquire them, to retain them, to disseminate them.
It requires -- even if it's not foreign intelligence information, which is, as Justice Breyer says -- recognized, is defined very broadly -- the statute allows the government to disseminate that information, just redacting the Americans' name.
The statute also allows the government to -- to retain evidence of criminal activity.
And for criminal defense lawyers, that's -- that's a -- it's a real issue.
So you're right that -- that our communications are not being targeted, but they are being monitored.
I see my time has expired.
Chief Justice John G. Roberts: Thank you, Counsel.
General Verrilli, you have four minutes remaining.
REBUTTAL ARGUMENT OF DONALD B. VERRILLI, JR., ON BEHALF OF THE PETITIONERS
Donald B. Verrilli Jr: Thank you, Mr. Chief Justice.
Two specific points and then three broader points.
First, Justice Kagan, with respect to the Naomi Klein declaration, what it says on page 338a is,
"Some of my sources will decline to share information with me if they believe that their communications are being monitored by the United States. "
Justice Elena Kagan: That's a fair point, General.
What if it said something different?
What if she said -- what if there were even an affidavit from the source saying,
"I have stopped talking with this journalist because of the FAA and because of my fear that my communications will be intercepted? "
Donald B. Verrilli Jr: I think you'd still have the problem of speculation there.
And if I could, Justice Breyer, go to your proposed solution.
I don't think it's a solution.
I think it's a mechanism for people who think they may be under surveillance, foreign terrorists who think they may be under surveillance, to find out whether they are or not.
I -- I just don't think that's a workable solution at all.
Now, three broader points, if I may.
First, the -- in every case in which the Court has found standing, every one on which the Respondents rely, the government conduct either happened or was certain to happen.
In Meese against Keene, the films had been labeled as political propaganda.
It wasn't a question about how authority to do so would be exercised.
In Laidlaw, the permit had issued, and the pollution was in the water.
There wasn't speculation about that.
Monsanto, we already talked about; the government action was certain.
That's true in every case.
And Summers drew a distinction with those cases because, in Summers, there was no example of a concrete application of the authority.
Second, their -- the fact that some of their clients may take steps that incur costs doesn't change the injury.
It's still speculative.
It's the kind of subjective chill that Laird said was -- was not sufficient to establish standing.
And I think, if you take a step back, think -- ask -- think about what they're asking you to do.
They are asking you to invalidate a vitally important national security statute based not on a concrete application--
Justice Elena Kagan: No, General Verrilli, this is not about the merits of the statute.
They might have no claim on the merits at all, and so there would be no question of invalidation.
The question is only: Can they make their argument to a court?
Donald B. Verrilli Jr: --But the whole point, Justice Kagan, the basic, most fundamental point about the case or controversy requirement and the injury-in-fact requirement that is embedded in it is to preserve the separation of powers.
They are asking the Court to consider invalidating the statute based on an assumption either that there is dragnet surveillance or an assumption that their clients are going to be put under surveillance, without a single fact to substantiate either of those assumptions.
I submit to the Court that it would be--
Justice Ruth Bader Ginsburg: Which they can never, never have, and that's what makes this -- if -- if there could be a person in this category who would know, but the person will never know.
You did mention minimization procedures as one safeguard against abuse.
What are the minimum -- what -- what minimization standards are taken that will protect plaintiffs in this class?
Donald B. Verrilli Jr: --It's a little bit hard to talk about, Your Honor, because, to the extent we're talking about the process of acquiring foreign intelligence, that's a very sensitive intelligence method; and, to the extent minimization plays into that, it's -- it's not public information.
But there are some steps that are publicly known, and they are, for example, that information acquired can be retained only for certain limited periods of time; that whenever -- when reports are done on information, that the names of U.S. persons or corporations are redacted.
There are other restrictions on the ability to use the information.
So there are steps of that nature.
Justice Antonin Scalia: Are there restrictions on giving the information to other government agencies, in particular, the Justice Department?
Donald B. Verrilli Jr: Well, that -- that -- again, Your Honor, there are procedures that govern those issues.
They're not public procedures, but there are procedures that govern those issues, yes.
But -- but, I do -- I understand the point, Your Honor, but I do think that's why Congress established this alternative structure of accountability, with the statutory protections, with the [= FISA] court review, including review for conformity with the Fourth Amendment, with very robust reporting requirements, semiannual reporting requirements -- I see my time's expired.
Chief Justice John G. Roberts: Thank you, counsel.
And so the case is submitted.