Alice M. Batchelder

“ A plaintiff asserting a claim under the Separation of Powers Doctrine must, like all other plaintiffs seeking to bring a claim in federal court, demonstrate injury in fact, causation, and redressability. ”

“ But the standing analysis is different for statutory claims. Sierra Club instructs courts that "the inquiry as to standing must begin with a determination of whether the statute in question authorizes review at the behest of the plaintiff." Sierra Club, 405 U.S. at 732. This instruction to begin standing analysis with the statutory language makes perfect sense in light of the well-established legal principle that "Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute." ”

“ Even if the wiretaps were not secret -- that is, if the overseas contacts and the plaintiffs were actually notified beforehand that the NSA was tapping their communication -- this knowledge would not redress the alleged injury. It is patently unreasonable to think that those who are reluctant to speak when they suspect the NSA of listening would be willing to speak once they know the NSA is listening. ”

“ The plaintiffs point to no provision in FISA, Title III, or any other statute that states that the four definitions "electronic surveillance" listed in FISA are the only kind of "electronic surveillance" that could ever be conducted. And the fact that the "exclusivity provision" is expressly limited to electronic surveillance "as defined in section 101 of [FISA] " leaves room to infer that other electronic surveillance is possible. Therefore, the plaintiffs cannot prove that FISA applies. ”

“ Finally, I note that the district court stated that, unless it found standing for these plaintiffs, the President's action would be insulated from judicial review. This idea, however, is neither novel nor persuasive. "The assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing." ”

“ This fear causes the overseas contacts to refuse to communicate with the plaintiffs by telephone or email, and this refusal to communicate burdens the plaintiffs in the performance of their jobs or other lawful objectives, because, in order to pursue their chosen professions or organizational objectives, the plaintiffs must travel overseas to meet with these contacts in person. This injury manifests itself as both an added expense and an added burden. ”

“ All wiretaps are secret, and the plaintiffs are not challenging the secret nature, but only the warrantless nature, of the TSP. Because all wiretaps are secret, neither the plaintiffs nor their overseas contacts would know -- with or without warrants -- whether their communications were being tapped, and the secret possession of a warrant would have no more effect on the subjective willingness or unwillingness of these parties to "freely engage in conversations and correspond via email" than would the secret absence of that warrant. ”

“ The Court thus held that "the 'direct' relationship between the alleged injury and the claim sought to be adjudicated, which . . . is a prerequisite of standing," was absent in that case. Id . In the present case, the plaintiffs requested a declaratory judgment and an injunction. They theorize that their injury (i.e., deficient professional performance or the additional cost of in-person communication) will be redressed by a declaration that the NSA's practice of warrantless wiretapping is unlawful, because it naturally follows that the unlawful conduct will be prohibited. ”

“ The district court had dismissed the claims for lack of standing, based on the plaintiffs' failure to show injury in fact, opining that the protections of the First Amendment extend not to corporations but to individuals, because "churches don't go to heaven." ”

“ To say that there could be more injury in other circumstances is to suggest that political speech is not valuable in and of itself and that no consequences flow from the chilling of political speech if such consequences are not easily articulable. Certain plaintiffs in the present case contend that the "professional injuries" that flow from the chilling of their "professional" speech is enough to satisfy Laird's requirement of something "more." ”

“ It can be argued that if respondent is not permitted to litigate this issue, no one can do so. In a very real sense, the absence of any particular individual or class to litigate these claims gives support to the argument that the subject matter is committed to the surveillance of Congress, and ultimately to the political process. ”

“ Injury in fact is but one of the criteria necessary to establish standing, and ultimately, it is not determinative of this case. Either of the other two criteria -- causation or redressability -- might ultimately defeat the plaintiffs' claim of standing, even if the plaintiffs' alleged injury is deemed adequate to state an injury in fact. ”

“ The Supreme Court framed the question in Laird, 408 U.S. at 10, as "whether the jurisdiction of a federal court may be invoked by a complainant who alleges that the exercise of his First Amendment rights [21] is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity." The Court held that its plaintiffs, subjects of secret United States Army surveillance, may have suffered a "subjective chill," but did not allege a sufficiently concrete, actual, and imminent injury to entitle them to standing. ”

“ The plaintiffs, however, read this provision as stating that Title III and FISA are together the "exclusive means" by which the NSA can intercept any communication, and that these two statutes collectively govern every interception (i.e., if not FISA then Title III, and if not Title III then FISA -- there are no other options) . Specifically, the plaintiffs contend that the NSA cannot lawfully conduct any wiretapping (under the TSP or otherwise) in a manner that is outside both the Title III and the FISA frameworks; the NSA's conduct must fall within the governance of one statute or the other. ”

“ Each review is based on a fresh intelligence assessment of terrorist threats to the continuity of our Government and the threat of catastrophic damage to our homeland. During each assessment, previous activities under the authorization are reviewed. The review includes approval by our Nation's top legal officials, including the Attorney General and the Counsel to the President. I have reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for as long as our Nation faces a continuing threat from Al Qaeda and related groups. ”

“ But even assuming, arguendo, that the plaintiffs have posited a proper reading of the exclusivity provision, and that the NSA's warrantless wiretapping violates that provision, "the fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person." ”

“ As much as I would prefer that resolution of this question were so simple, I believe the law demands a particularized analysis of the plaintiffs' three alleged injuries, six asserted legal claims, and two requested forms of relief. See Cuno, 126 S.C.t. at 1867 (" [A] plaintiff must demonstrate standing for each claim he seeks to press.") ; Laidlaw, 528 U.S. at 185 (" [A] plaintiff must demonstrate standing separately for each form of relief sought.") . Therefore, I believe the complexity of this case calls for a far more specific and comprehensive analysis than that offered by my colleagues. ”

“ In this sense, it is noteworthy that the Laidlaw Court explicitly confined its injury-in-fact reasoning to environmental cases, stating: " environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity." ”

“ Some plaintiffs (especially those who are lawyers) assert that the imposition of FISA minimization -- to limit the use and dissemination of the information acquired -- would relieve their fears sufficiently to satisfy their ethical obligations because it would ensure that those communications would remain confidential and privileged in the event of a subsequent criminal prosecution, removal proceeding, military tribunal, etc. Therefore, they argue, imposition of FISA requirements would alter the type and content of their communications. ”

“ First, the plaintiffs have not alleged, and the record does not contain sufficient facts from which to conclude, that they are "aggrieved persons." FISA defines an "aggrieved person" as "a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance." 50 U.S.C. § 1801 (k) . " [T] he term [aggrieved person] is intended to be coextensive [with] , but no broader than, those persons who have standing to raise claims under the Fourth Amendment with respect to electronic surveillance." ”

“ It is also at odds with the remainder of the Laird opinion and First Amendment doctrine in general. Consequently, it is not the value of the speech that determines the injury but the level of restraint, and "chilling" is not sufficient restraint no matter how valuable the speech.
Therefore, to allege a sufficient injury under the First Amendment, a plaintiff must establish that he or she is regulated, constrained, or compelled directly by the government's actions, instead of by his or her own subjective chill. Laird, 408 U.S. at 11; Reagan, 738 F.2d at 1378. ”

“ The anticipated harm that causes one to refrain from the activities may satisfy the "injury-in-fact" element of standing if it is sufficiently imminent and concrete. For reasons that will be made clear in the analysis, the other harm -- the harm that results from refraining from the potentially harmful activities -- is another matter. ”

“ Therefore, the injury that would support a declaratory judgment action (i.e., the anticipated interception of communications resulting in harm to the contacts) is too speculative, and the injury that is imminent and concrete (i.e., the burden on professional performance) does not support a declaratory judgment action. This general proposition - the doctrine of standing - is explained more fully in the sections of the analysis regarding each, individual cause of action. ”

“ When congregants are chilled from participating in worship activities [and] refuse to attend church services because they fear the government is spying on them and taping their every utterance, all as alleged in the complaint, we think a church suffers organizational injury because its ability to carry out its ministries has been impaired.
Id. at 522 (emphasis added) . The Ninth Circuit then distinguished Laird:
Although Laird establishes that a litigant's allegation that it has suffered a subjective 'chill' does not necessarily confer Article III standing, Laird does not control this case. ”

“ The irreducible constitutional minimum of standing contains three requirements: (1) injury in fact, (2) causation, and (3) redressability. Steel Co., 523 U.S. at 102-03. The prudential standing doctrine embodies "judicially self-imposed limits on the exercise of federal jurisdiction." Bennett v. Spear, 520 U.S. 154, 161, 117 S.C.t. 1154, 137 L. Ed. 2d 281 (1997) . Because these prudential principles are "limits" on standing, they do not themselves create jurisdiction; they exist only to remove jurisdiction where the Article III standing requirements are otherwise satisfied. ”

“ Slow, cumbersome, and unresponsive though the traditional electoral process may be thought at times, our system provides for changing members of the political branches when dissatisfied citizens convince a sufficient number of their fellow electors that elected representatives are delinquent in performing duties committed to them. ”

“ III federal courts to render advisory opinions, or to entertain 'friendly' suits, or to resolve 'political questions,' because suits of this character are inconsistent with the judicial function under Art. III. But where a dispute is otherwise justiciable, the question whether the litigant is a 'proper party to request an adjudication of a particular issue,' is one within the power of Congress to determine. ”

“ Because the government has already acknowledged the existence of the warrantless wiretapping in this case, there is no risk of such disclosure and the rule of non-justiciability does not apply. The alleged data mining, which has not been publicly acknowledged, might fall within this rule. But, under the present analysis, a decision on this matter is unnecessary.↑ The plaintiffs have not challenged on appeal either the invocation or the grant of the state secrets privilege and that issue is not before the court. ”

“ The Constitution created a representative Government with the representatives directly responsible to their constituents at stated periods of two, four, and six years; that the Constitution does not afford a judicial remedy does not, of course, completely disable the citizen who is not satisfied with the 'ground rules' established by the Congress for reporting expenditures of the Executive Branch. Lack of standing within the narrow confines of Art. ”

“ I do not assert or imply that Laird's holding, which I narrowly construe as regarding only a subjective chill on First Amendment rights, extends to any other causes of action.↑ As discussed in Section II, this scenario could result in a breach of the plaintiffs' privacy under the Fourth Amendment, but the present analysis concerns only the First Amendment cause of action. The Fourth Amendment, and harms attributable to a defendant's breach of its protections, necessitate a different analysis. ”