WASHINGTON – The U.S. Supreme Court yesterday ended a nearly five-year effort by a coalition of lawyers, human rights workers, media organizations and others to challenge the constitutionality of the nation’s major federal surveillance law.

In a 5-4 decision in Clapper v. Amnesty International USA, 11-1025, the justices ruled that the coalition, represented by the American Civil Liberties Union, did not have standing to bring the lawsuit.

The coalition filed its lawsuit on the day that Congress enacted the Foreign Intelligence Surveillance Amendments Act of 2008. The suit charged that the act violated the plaintiffs’ free speech and privacy rights as well as the Constitution’s separation of powers.

The issue had sharply divided the U.S. Court of Appeals for the Second Circuit. A panel of the court had held that the lawsuit could go forward ( NYLJ, March 22, 2011), but a bid for en banc review was rejected by the narrowest of margins, 6-6 ( NYLJ, Sept. 23, 2011).

Yesterday’s ruling reinstated the conclusion of Southern District Judge John Koeltl ( NYLJ, Aug. 21, 2009).

The 2008 act expanded the government’s authority to use electronic surveillance. It allows the attorney general and director of national intelligence to authorize jointly the "targeting of [non-U.S.] persons reasonably believed to be located outside the United States" for a period of up to one year to acquire "foreign intelligence information."

The amendments specify that the surveillance may not intentionally target an American—whether that person is known to be in the United States or is reasonably believed to be outside the United States—and may not target a person outside the United States "if the purpose is to target a particular, known person reasonably believed to be in the United States."

The amendments also require that the surveillance be conducted consistent with the Fourth Amendment. No individualized suspicion or probable cause addressing each target is required. Instead, the Foreign Intelligence Surveillance Court may approve certifications by the attorney general and the director that identify categories of foreign intelligence targets.

During arguments before the justices last October, the ACLU’s Jameel Jaffer said his clients engage in sensitive communications with likely targets of the act’s surveillance. For example, some of his client-lawyers represent Guantánamo Bay detainees. A number of them already have taken sometimes costly and burdensome steps in an attempt to protect their communications. Those costs, Jaffer argued, are sufficient to establish standing to sue.

The requirements for Article III standing are an injury that is concrete, particularized, actual or imminent; redressable by a court; and fairly traceable to the challenged action.

In his majority opinion for the Court, Justice Samuel Alito Jr. called "too speculative" the coalition’s theory that there was a reasonable likelihood that its members’ communications would be acquired under the act at some point in the future. And even if they could demonstrate that the injury is "certainly impending," he wrote, "They still would not be able to establish that this injury is fairly traceable" to the act.

The majority also rejected the coalition’s alternative theory of standing: that they are suffering present injury because the risk of surveillance already has forced them to take costly steps to protect the confidentiality of their communications.

The coalition "cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending," wrote Alito, who was joined by Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.

Writing in dissent, Justice Stephen Breyer said the harm caused by the act was not speculative. The basic question, he wrote, is whether the harm—the interceptions—is actual or imminent.

"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," he wrote. "This Court has often found the occurrence of similar future events sufficiently certain to support standing."

The justice then spent more than eight pages describing decisions in which the court found standing where the injury was far less certain than argued by the coalition.

The use of the word "certainly" in "certainly impending," he added, does not mean absolute certainty, but reasonable probability or high probability.

He was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

The majority’s opinion insulates the act from meaningful judicial review, the ACLU’s Jaffer said in a statement.

"Justice Alito’s opinion for the court seems to be based on the theory that the FISA court may one day, in some as-yet unimagined case, subject the law to constitutional review, but that day may never come," he said. "And if it does, the proceeding will take place in a court that meets in secret, doesn’t ordinarily publish its decisions, and has limited authority to consider constitutional arguments. This theory is foreign to the Constitution and inconsistent with fundamental democratic values."