Court's Ruling in Case Against NSA Raises Standard for Standing Doctrine

The case demonstrates challenges people face taking on surveillance programs in court, due to the nature of the programs and the secrecy associated with them, said Privacy and Civil Liberties Oversight Board (PCLOB) Chairman David Medine. It’s hard to demonstrate an individual was the subject of surveillance, Medine said, saying the PCLOB has an advantage in that it doesn’t have to establish standing to engage in an inquiry into a surveillance program.

Larry Klayman, one of the plaintiffs in the case, who is also chairman of Freedom Watch and a former Justice Department prosecutor, wrote an opinion article for the website WND Friday on behalf of himself and the other two plaintiffs, Charlie and Mary Ann Strange, calling the ruling “bizarre and illegal.” Klayman said the judges' political aspirations clouded their judgment, noting the Republican establishment’s historical defense of intelligence activities. Republican leaders including Senate Majority Leader Mitch McConnell, Ky., and Senate Intelligence Committee Chairman Richard Burr, N.C., didn’t comment on the court’s decision. Members of Congress who have sought reform within the intelligence community commented on Twitter. Sen. Rand Paul, R-Ky., tweeted a photo of himself in front of an NSA building with the caption “When I'm President we'll turn it into a Constitutional Center to study the Fourth Amendment!” Sen. Ron Wyden, D-Ore., shared a tweet from Jake Laperruque, a program fellow at New America’s Open Technology Institute, that said the opinion had nothing to do with the program's legality and that the issue would be ongoing “if not for [the passage of] USA Freedom.”

“The issue is not whether we need government surveillance to fight terrorism, but how we do it,” Klayman said. “I am confident that the Stranges and I will prevail when this case is sent back to Judge Leon, as the three-judge panel ordered,” Klayman said. “Leon has already set a status conference for Sept. 2 at 12 p.m. to address the D.C. Circuit’s ruling and how to proceed from here.”

Because the plaintiffs’ phone service was provided by Verizon Wireless and not Verizon Business, which the government had admitted to surveilling, the D.C. Circuit said the plaintiffs hadn't proven their constitutional rights were violated. The standard for bringing a case against a secret government program like this is too high, said Electronic Frontier Foundation Executive Director Cindy Cohn. Individuals have to prove their entire case before they can sue, which isn't the case in a regular lawsuit, she said. Knowing to a high technical degree what happened in a national security case before even bringing a case is something the D.C. Circuit seems to endorse, which affects the standing doctrine, Cohn said.

Cohn said she isn’t aware of any other area in law where a person accused of a misdeed has to admit wrongdoing before an individual can get relief. The D.C. Circuit appears to have misread the Supreme Court’s decision in Clapper v. Amnesty International, she said, and the misreading could become the rule if it spreads to other circuits.

When the plaintiffs return to court, they will be able to use evidence proving that their records were collected, Cohn said. In a blog post on the EFF site Friday, Cohn wrote that The New York Times obtained government-released documents through a Freedom of Information Act request that prove Verizon Wireless records were collected under Section 215 of the Patriot Act.

Thursday, the Foreign Intelligence Surveillance Court issued a primary order approving the government’s request to renew the Section 215 bulk telephony program until Nov. 29, when the program ceases to exist, the Department of Justice and Director of National Intelligence said in a joint statement Friday on the declassification of the renewal of the program. If the FISC court hadn't approved the renewal, it may have interrupted the NSA’s ability to transfer the metadata program to the phone companies. To verify the data produced by the phone companies is equal to that produced by the NSA, the NSA will be able to access historical metadata records for three months after the end of the Section 215 program, the DOJ and DNI said. The NSA must preserve its collection until all civil litigation regarding the program is resolved or the courts “relieve NSA of such obligations,” it said.

Since NSA’s program will end in November, the impact of the D.C. Circuit’s opinion is limited, said American University law professor Steve Vladeck, also co-editor-in-chief of Just Security, in a post on the site Friday. But Vladeck agrees with Cohn that the judges’ “standing analysis could have significant implications in future cases seeking to challenge secret government programs, and, perhaps, in all cases seeking preliminary injunctive relief.” The judges’ didn’t explain why a court would raise the standing threshold in regard to resolving a motion for a preliminary injunction, Vladeck said. “The only citation Judge Williams offers in support of his analysis is his own dissenting opinion,” he said. “One wonders, in retrospect, if we’d have been better off with a holding that the appeal was mooted by the USA FREEDOM Act.”