soldier with rifle american civil warJoe Ryan Civil War
State Of The Union

Congress Authorizes The Government To Eavesdrop

Justice Clarence Thomas
at Washington & Lee University

By: Joe Ryan

"The lessons we can draw from Lincoln's experience are enduring ones, and can help us address some of the most challenging issues we face today. Particularly, to the extent those issues result from, or are exacerbated by, . . . the growing social and political apathy toward the principles of liberty on which our country is founded. This is particularly true as providing security appears to be displacing the protection of liberty as the Government's purpose." (Justice Clarence Thomas, speaking at Washington & Lee University, September 2009.)

Justice Clarence Thomas


The Congress Authorizes The Government To Eavesdrop

On Telephone Conversations Between American Citizens

And Persons In Foreign Countries: Who Cares?

In 2008, the Congress passed an amendment to the Foreign Intelligence Surveillance Act of 1978 ("FISA") which created new procedures for authorizing government electronic surveillance of the telephone conversations between American citizens and those persons residing overseas the citizens talked to. Before the amendment, the Government was required by the law to petition a special court, called the "Foreign Intelligence Surveillance Court" for authorization to bug the phones of a particular American citizen who talks to persons abroad. After the amendment, the Government is allowed to apply to the "court" for a mass surveillance authorization; i.e., the Government requires the phone companies to record and hand over to it all telephones calls between American citizens and persons residing abroad. The amendment also prohibits the "court" from monitoring the Government's activities in sweeping up this vast store of recorded conversations, leaving that task to the Government itself. If the "court" rejects the Government's petition for authorization, the Government may continue to do what it is doing, pending the outcome of an appeal from the "court's" denial.

Thus, the Government, our representatives in Congress graciously have allowed, need not identify any particular target of its interest, make any showing of probable cause to suspect the commission of a crime, and can simply search through all telephone communications to American citizens from persons around the world, looking for a hint of something it thinks must be amiss.

Thanks to our Congress, the Executive Branch now claims the constitutional power of sweeping authority, uncontrolled by ordinary judicial review, to monitor the international communications of law-abiding American citizens and residents. As a consequence the Government now intercepts all private conversations between lawyers and their clients, businessmen and their counterparts, citizens and their friends and relatives.

In 2008, a number of lawyers, journalists, and civil rights organizations filed suit against the Government for the purpose of obtaining a declaration from the courts that Congress's conduct violates the Fourth Amendment to the United States Constitution. The Government, through Attorney General Eric Holder, moved for summary judgment on the ground that the plaintiffs lacked standing to sue, because they could not establish that the telephone communications of any of them had, in fact, been intercepted by the Government. The United States District Court granted summary judgment for the Government on this ground, and the plaintiffs appealed to the Second Circuit Court of Appeals. On March 11, 2011, the Court of Appeals reversed the District Court, returning the case to that court for further proceeding. The Government petitioned the Supreme Court for review; the petition granted, the case is presently pending before that court for decision.

The District Court denied that the plaintiffs had standing because it found that neither of the plaintiffs' asserted injuries—their actual and well-founded fear of being monitored and the resulting economic costs they have incurred to protect their communications from the Government's spying ears—constituted sufficient injury to qualify them to sue.

In reversing the District Court on this threshold issue of standing, the Court of Appeals said:

"Here, the plaintiffs' actions [in protecting their communications from spies] were fairly traceable to [Congress's amendment of the law] because, as we explain, their fears were reasonable and because they incurred economic costs as a direct result of that reasonable fear.


The Government argues that the plaintiffs can obtain standing only by showing either that they have been monitored or that it is certain that they will be monitored. The Government overstates the rule: The plaintiffs need not show that they have been or certainly will be monitored. They need only show a realistic danger that they will be monitored. . .


One factor that bolsters a plaintiff's argument that the injury is likely to come to pass, according to both the Supreme Court and this Court, is the existence of a policy that authorizes the potentially harmful conduct. The plaintiffs have established that they suffered present injuries-in-fact—economic and professional harm—stemming from a reasonable fear of future harmful government conduct. They have asserted that the congressional act permits broad monitoring through mass surveillance orders that authorize the government to collect millions of communications, including communications between the plaintiffs and their overseas contacts. The Act is susceptible to this interpretation, and the government has not controverted this interpretation or offered a more compelling one.


The fact that the government has authorized the potentially harmful conduct means that the plaintiffs can reasonably assume that government officials will actually engage in that conduct by carrying out the authorized surveillance. It is fanciful, moreover, to question whether the government will ever undertake broad-based surveillance of the type authorized by the statute. The Act was passed specifically to permit surveillance that was not permitted under the previous version of the law. And it verges on the fanciful to suggest that the government will more than rarely fail to comply with the formal requirements of the law once surveillance occurs. Empirical evidence supports this: in 2008, the government sought 2,082 surveillance order and the "court" approved 2,081 of them." (See, Amnesty International, et all. v. James R. Clapper Jr., Director of National Intelligence. 638 F.3d 118 (2011)


Upon the reversal of the district court order of summary judgment, the Government sought rehearing by the Court of Appeal sitting en banc; instead of a panel of three judges, the Government asked for a panel of eleven. The petition was refused on the following grounds:

"The dissenters (those who would order rehearing) go to great lengths to downplay the significance of the changes contained in the Amendment. But, as the panel opinion explains, the Amendment indisputably and significantly broadens the risk of interception, lowers the government's probable cause burden, and decreases the oversight role of the `court.' Prior to the Amendment, the government was required to identify its specific surveillance target to the `court.' The `court' would issue a warrant only if it found there was probable cause that the target was a foreign power or an agent of a foreign power, and that the target was using or about to use the facility to be monitored.


The Amendment significantly alters these procedures. Now, the `court' need only find that the government's general procedures comply with the statute and with the Fourth Amendment; the probable cause determinations are no longer particularized. The Attorney General no longer needs to identify specific surveillance targets to the `court.'"


Five of the eleven judges of the Court of Appeals dissented from the Court's refusal to rehear the case. Their dissenting opinion reads in relevant part:

"A panel of this court recognizes plaintiffs' standing to mount a facial Fourth Amendment challenge to an act of Congress that authorizes foreign intelligence surveillance subject to statutory conditions, court order, congressional supervision—and compliance with the Fourth Amendment. The panel reaches this conclusion even though plaintiffs cannot be targeted for surveillance under that statute, cannot demonstrate actual or imminent interception of any of their communications, and may in fact never experience such interception.


This analysis pronounces a novel, relaxed standing standard wholly at odds with Supreme Court precedent. . . In the absence of any evidence of actual surveillance, a court cannot assume the executive and the judiciary will flout the statutory requirements or misconstrue Fourth Amendment protections. . . . Plaintiffs are merely coincidental interceptees and thus cannot claim their Fourth Amendment rights have been violated, as only the target can claim that." (The dissent goes on for twenty pages of text to explain why standing should not be recognized.)


On October 29, 2012, the Government's petition for review to the United States Supreme Court was heard with oral argument. In the course of the argument, Justice Breyer, finding incredulous the government's position that the plaintiffs had no good reason to fear interception of their communications, remarked—"I assume it is an injury for an American speaking in America to have his communications intercepted against his will by the American government. We take that as a harm." But the government's lawyer replied that none of the plaintiffs can prove their communications were actually overheard. Justice Ginsburg replied to this, saying: "It's not speculative. If the government is granted power by Congress it is silly to think it will not use it." Justice Kennedy echoed this, with—"The government has obtained this extraordinary wide-reaching power. It is hard for me to think the government isn't using all of the powers at its command under the law." (See, Amnesty International, et al. v. James R. Clapper Jr. 667 F.3d 163 (2011)

Editor's Comment

But who really cares? Justice Thomas is certainly correct when he speaks about the "public's apathy toward the principles of liberty on which our country was founded."

In this presidential election years, with the shoving back and forth going on between Red states and Blue states, where is there any debate going on regarding the Orwellian atmosphere permeating the Congress of the United States? It will be interesting to see which side of the standing issue for these plaintiffs Justice Clarence Thomas joins.