III. Standing
Defendants argue that Plaintiffs do not establish their standing. They contend that Plaintiffs’ claim here is merely a subjective fear of surveillance which falls short of the type of injury necessary to establish standing. They argue that Plaintiffs’ alleged injuries are too tenuous to be recognized, not “distinct and palpable” nor “concrete and particularized.”
Article III of the U.S. Constitution limits the federal court’s jurisdiction to “cases” and “controversies”. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To have a genuine case or controversy, the plaintiff must establish standing. “[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. at 560. To establish standing under Article III, a plaintiff must satisfy the following three requirements: (1) “the plaintiff must have suffered an injury in fact – an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical”; (2) “there must be a causal connection between the injury and the conduct complained of”, and (3) “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 560-561. The party invoking federal jurisdiction bears the burden of establishing these elements. Id. at 561.
“An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests it seeks to protect are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 181 (2000) (citing Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 342 (1977)).
“At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we ‘presume that general allegations embrace those specific facts that are necessary to support the claim.’ ” Id. at 561 (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990)). “In response to a motion for summary judgment, however, the plaintiff can no longer rest upon such ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts’ Fed.R.Civ.Proc. 56(e), which for purposes of the summary judgment motion will be taken to be true.” Id. This court is persuaded that Plaintiffs in this case have set forth the necessary facts to have satisfied all three of the prerequisites listed above to establish standing.
To determine whether Plaintiffs have standing to challenge the constitutionality of the TSP, we must examine the nature of the injury-in-fact which they have alleged. “The injury must be … ‘distinct and palpable,’ and not ‘abstract’ or ‘conjectural’ or ‘hypothetical.’” National Rifle Association of America v. Magaw, 132 F.3d 272, 280 (6th Cir. 1997) (citing Allen v. Wright, 468 U.S 737, 751 (1982)).
Plaintiffs here contend that the TSP has interfered with their ability to carry out their professional responsibilities in a variety of ways, including that the TSP has had a significant impact on their ability to talk with sources, locate witnesses, conduct scholarship, engage in advocacy and communicate with persons who are outside of the United States, including in the Middle East and Asia. Plaintiffs have submitted several declarations to that effect. For example, scholars and journalists such as plaintiffs Tara McKelvey, Larry Diamond, and Barnett Rubin indicate that they must conduct extensive research in the Middle East, Africa, and Asia, and must communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations. (12) In addition, attorneys Nancy Hollander, William Swor, Joshua Dratel, Mohammed Abdrabboh, and Nabih Ayad indicate that they must also communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations, (13) and must discuss confidential information over the phone and email with their international clients. (14) All of the Plaintiffs contend that the TSP has caused clients, witnesses and sources to discontinue their communications with plaintiffs out of fear that their communications will be intercepted. (15) They also allege injury based on the increased financial burden they incur in having to travel substantial distances to meet personally with their clients and others relevant to their cases. (16)
The ability to communicate confidentially is an indispensable part of the attorney-client relationship. As University of Michigan legal ethics professor Leonard Niehoff explains, attorneyclient confidentiality is “central to the functioning of the attorney-client relationship and to effective representation.” (17) He further explains that Defendants’ TSP “creates an overwhelming, if not insurmountable, obstacle to effective and ethical representation” and that although Plaintiffs are resorting to other “inefficient” means for gathering information, the TSP continues to cause “substantial and ongoing harm to the attorney-client relationships and legal representations.” (18) He explains that the increased risk that privileged communications will be intercepted forces attorneys to cease telephonic and electronic communications with clients to fulfill their ethical responsibilities. (19)
Defendants argue that the allegations present no more than a “chilling effect” based upon purely speculative fears that the TSP subjects the Plaintiffs to surveillance. In arguing that the injuries are not constitutionally cognizable, Defendants rely heavily on the case of Laird v. Tatum, 408 U.S. 1 (1972).
In Laird, the plaintiffs sought declaratory and injunctive relief on their claim that their rights were being invaded by the Army’s domestic surveillance of civil disturbances and “public activities that were thought to have at least some potential for civil disorder.” Id. at 6. The plaintiffs argued that the surveillance created a chilling effect on their First Amendment rights caused by the existence and operation of the surveillance program in general. Id. at 3. The Supreme Court rejected the plaintiffs’ efforts to rest standing upon the mere “chill” that the program cast upon their associational activities. It said that the “jurisdiction of a federal court may [not] be invoked by a complainant who alleges that the exercise of his First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity.” Id. (emphasis added)
Laird, however, must be distinguished here. The plaintiffs in Laird alleged only that they could conceivably become subject to the Army’s domestic surveillance program. Presbyterian Church v. United States, 870 F.2d 518, 522 (1989) (citing Laird v. Tatum, 408 U.S at 13) (emphasis added). The Plaintiffs here are not merely alleging that they “could conceivably” become subject to surveillance under the TSP, but that continuation of the TSP has damaged them. The President indeed has publicly acknowledged that the types of calls Plaintiffs are making are the types of conversations that would be subject to the TSP. (20)
Although Laird establishes that a party’s allegation that it has suffered a subjective “chill” alone does not confer Article III standing, Laird does not control this case. As Justice (then Judge) Breyer has observed, “[t]he problem for the government with Laird . . . lies in the key words ‘without more.’” Ozonoff v. Berzak, 744 F.2d 224, 229 (1st Cir. 1984). This court agrees with Plaintiffs’ position that “standing here does not rest on the TSP’s ‘mere existence, without more.’” The Plaintiffs in this case are not claiming simply that the Defendants’ surveillance has “chilled” them from making international calls to sources and clients. Rather, they claim that Defendants’ surveillance has chilled their sources, clients, and potential witnesses from communicating with them. The alleged effect on Plaintiffs is a concrete, actual inability to communicate with witnesses, sources, clients and others without great expense which has significantly crippled Plaintiffs, at a minimum, in their ability to report the news and competently and effectively represent their clients. See Presbyterian Church v. United States, 870 F.2d 518 (1989) (church suffered substantial decrease in attendance and participation of individual congregants as a result of governmental surveillance). Plaintiffs have suffered actual concrete injuries to their abilities to carry out their professional responsibilities. The direct injury and objective chill incurred by Plaintiffs are more than sufficient to place this case outside the limitations imposed by Laird.
The instant case is more akin to Friends of the Earth, in which the Court granted standing to environmental groups who sued a polluter under the Clean Water Act because environmental damage caused by the defendant had deterred members of the plaintiff organizations from using and enjoying certain lands and rivers. Friends of the Earth, 528 U.S. at 181-183. The Court there held that the affidavits and testimony presented by plaintiffs were sufficient to establish reasonable concerns about the effects of those discharges and were more than “general averments” and “conclusory allegations.” Friends of the Earth, 528 U.S. at 183-184. The court distinguished the case from Lujan, in which the Court had held that no actual injury had been established where plaintiffs merely indicated “‘some day’ intentions to visit endangered species around the world.” Friends of the Earth, 528 U.S. at 184 (quoting Lujan, 504 U.S. at 564). The court found that the affiants’ conditional statements that they would use the nearby river for recreation if defendant were not discharging pollutants into it was sufficient to establish a concrete injury. Id. at 184.
Here, Plaintiffs are not asserting speculative allegations. Instead, the declarations asserted by Plaintiffs establish that they are suffering a present concrete injury in addition to a chill of their First Amendment rights. Plaintiffs would be able to continue using the telephone and email in the execution of their professional responsibilities if the Defendants were not undisputedly and admittedly conducting warrantless wiretaps of conversations. As in Friends of the Earth, this damage to their interest is sufficient to establish a concrete injury.
Numerous cases have granted standing where the plaintiffs have suffered concrete profession-related injuries comparable to those suffered by Plaintiffs here. For example, the First Circuit conferred standing upon claimants who challenged an executive order which required applicants for employment with the World Health Organization to undergo a “loyalty” check that included an investigation into the applicant’s associations and activities. The court there determined that such an investigation would have a chilling effect on what an applicant says or does, a sufficient injury to confer standing. Ozonoff, 744 F.2d at 228-229. Similarly, the District of Columbia Circuit Court of Appeals granted standing to a reshelver of books at the Library of Congress who was subjected to a full field FBI investigation which included an inquiry into his political beliefs and associations and subsequently resulted in his being denied a promotion or any additional employment opportunities; the court having determined that plaintiff had suffered a present objective harm, as well as an objective chill of his First Amendment rights and not merely a potential subjective chill as in Laird. Also, the Supreme Court in Presbyterian Church v. United States, granted standing to a church which suffered decreased attendance and participation when the government actually entered the church to conduct surveillance. Presbyterian Church, 870 F.2d at 522. Lastly, in Jabara v. Kelley, 476 F.Supp. 561 (E.D. Mich. 1979), vac’d on other grounds sub. nom. Jabara v. Webster, 691 F.2d 272 (6th Cir. 1982), the court held that an attorney had standing to sue to enjoin unlawful FBI and NSA surveillance which had deterred others from associating with him and caused “injury to his reputation and legal business.” Id. at 568.
These cases constitute acknowledgment that substantial burdens upon a plaintiff’s professional activities are an injury sufficient to support standing. Defendants ignore the significant, concrete injuries which Plaintiffs continue to experience from Defendants’ illegal monitoring of their telephone conversations and email communications. Plaintiffs undeniably have cited to distinct, palpable, and substantial injuries that have resulted from the TSP.
This court finds that the injuries alleged by Plaintiffs are “concrete and particularized”, and not “abstract or conjectural.” The TSP is not hypothetical, it is an actual surveillance program that was admittedly instituted after September 11, 2001, and has been reauthorized by the President more than thirty times since the attacks. (21) The President has, moreover, emphasized that he intends to continue to reauthorize the TSP indefinitely. (22) Further, the court need not speculate upon the kind of activity the Plaintiffs want to engage in – they want to engage in conversations with individuals abroad without fear that their First Amendment rights are being infringed upon. Therefore, this court concludes that Plaintiffs have satisfied the requirement of alleging “actual or threatened injury” as a result of Defendants’ conduct.
It must now be determined whether Plaintiffs have shown that there is a causal connection between the injury and the complained of conduct. Lujan, 504 U.S. at 560-561. The causal connection between the injury and the conduct complained of is fairly traceable to the challenged action of Defendants. The TSP admittedly targets communications originated or terminated outside the United States where a party to such communication is in the estimation of Defendants, a member of al Qaeda, a member of a group affiliated with al Qaeda, or an agent of al Qaeda or its affiliates. (23) The injury to the Plaintiffs stems directly from the TSP and their injuries can unequivocally be traced to the TSP.
Finally, it is likely that the injury will be redressed by the requested relief. A determination by this court that the TSP is unconstitutional and a further determination which enjoins Defendants from continued warrantless wiretapping in contravention of FISA would assure Plaintiffs and others that they could freely engage in conversations and correspond via email without concern, at least without notice, that such communications were being monitored. The requested relief would thus redress the injury to Plaintiffs caused by the TSP.
Although this court is persuaded that Plaintiffs have alleged sufficient injury to establish standing, it is important to note that if the court were to deny standing based on the unsubstantiated minor distinctions drawn by Defendants, the President’s actions in warrantless wiretapping, in contravention of FISA, Title III, and the First and Fourth Amendments, would be immunized from judicial scrutiny. It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights. The three separate branches of government were developed as a check and balance for one another. It is within the court’s duty to ensure that power is never “condense[d] … into a single branch of government.” Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion). We must always be mindful that “[w]hen the President takes official action, the Court has the authority to determine whether he has acted within the law.” Clinton v. Jones, 520 U.S. 681, 703 (1997). “It remains one of the most vital functions of this Court to police with care the separation of the governing powers…. When structure fails, liberty is always in peril.” Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 468 (1989) (Kennedy, J., concurring).
Because of the very secrecy of the activity here challenged, Plaintiffs each must be and are given standing to challenge it, because each of them, is injured and chilled substantially in the exercise of First Amendment rights so long as it continues. Indeed, as the perceived need for secrecy has apparently required that no person be notified that he is aggrieved by the activity, and there have been no prosecutions, no requests for extensions or retroactive approvals of warrants, no victim in America would be given standing to challenge this or any other unconstitutional activity, according to the Government. The activity has been acknowledged, nevertheless.
Plaintiffs have sufficiently alleged that they suffered an actual, concrete injury traceable to Defendants and redressable by this court. Accordingly, this court denies Defendants’ motion to dismiss for lack of standing.
