A challenge by attorneys, human rights groups and journalists to the U.S. government's overseas wiretapping program was dismissed Thursday.
Southern District of New York Judge John G. Koeltl found the plaintiffs lacked standing to attack amendments to the Foreign Intelligence Surveillance Act of 1978 allowing for surveillance of phone calls and other communications abroad, even when the person on the other end of the line is an American.
The judge's ruling in Amnesty International v. McConnell, 08 Civ. 6259, rejected the claim that §702 of the act, which was added in the FISA Amendments Act of 2008, was facially unconstitutional.
"The plaintiffs fear their international communications will be monitored under" the FISA Amendments Act, Judge Koeltl said in a 64-page opinion. "They make no claim that their communications have yet been monitored, and they make no allegation or showing that the surveillance of their communications has been authorized or that the government has sought approval for such surveillance."
Under the amendments, federal officials seeking foreign intelligence information may apply to the Foreign Intelligence Surveillance Court for approval to wiretap non-U.S. citizens located outside the United States.
But Amnesty International and other human rights organizations, as well as reporters and lawyer groups such as the International Criminal Defense Attorneys Association, claimed they were unable to do their jobs out of fear their conversations might be monitored.
At a hearing in July on the matter, Jameel Jaffer of the American Civil Liberties Union argued that plaintiffs had met the requirement of standing.
The plaintiffs, he said, "have a well-founded fear that their communications will be monitored" and "you don't have to wait until your injury is consummated."
Jaffer also stressed that some lawyers had already suffered "concrete injury" because they had to avoid the telephone and were forced to take trips abroad to speak with their clients in private.
Anthony J. Coppolino, special litigation counsel with the U.S. Department of Justice, represented the government.
"I don't think the issue of standing is a terribly close one," he said during last month's hearing. "You can't build jurisdiction on conjecture or a hypothetical."
Coppolino also sought to reassure Judge Koeltl that so-called "reverse targeting" of Americans -- wiretapping a foreign national who just happens to be speaking with an American -- is forbidden. Coppolino said that so-called "targeting and minimization procedures" protect against abuse of the authority.
But Judge Koeltl never had to reach the merits of the law's constitutionality.
"The plaintiffs can only demonstrate an abstract fear that their communications will be monitored" under the FISA Amendments Act, he said, adding later that, contrary to their claims, the act itself "does not authorize surveillance of the plaintiffs' communications."
The judge explained that government officials are authorized to seek an order from the surveillance court and "that order cannot target the plaintiffs."
"No case from within or outside the context of surveillance provides any basis to conclude that the speculative fear of harm asserted by the plaintiffs is sufficient to support standing for a pre-enforcement challenge," he said.
The judge then rejected Jaffer's claim of concrete injury -- the cost of trips abroad to meet with clients.
"The costs the plaintiffs have incurred in an effort to protect the confidentiality of their international communications fail to provide a basis for standing to challenge the constitutionality" of the law, he said.
The judge noted that the costs incurred flowed from the plaintiffs' first argument on standing -- their fear of surveillance.
"To allow the plaintiffs to bring this action on the basis of such costs would essentially be to accept a repackaged version of the first failed basis for standing," Judge Koeltl said.
Jaffer said Thursday that the decision was a disappointment for many reasons, one being that "it doesn't grapple with the very real effect" of the law.
"The attorney plaintiffs have had to take costly and burdensome measures to protect the confidentiality of their communications and they have had to do that because of their well-founded fears their communications would be monitored," he said. "And to say plaintiffs can't challenge this law unless they can show their communications were intercepted is to say that a law like this may not be subject to judicial review at all."
