CCR v. Obama, No. 13-802, cert. denied, 134 S.Ct. 1497 (2014)
This lawsuit on behalf of the Center for Constitutional Rights and several of its present and former legal staff members was originally filed on January 17, 2006 against President Bush and other government officials in the federal district court for the Southern District of New York. The complaint alleged that the NSA’s Terrorist Screening Program (“TSP”) cast a chilling effect over CCR’s communications with overseas clients and ability to engage in public interest litigation. On December 15, 2006, the Judicial Panel on Multidistrict Litigation ordered that the CCR lawsuit be transferred for consolidation by Judge Vaughn Walker of the Northern District of California with the other challenges to the TSP in In re National Security Agency Telecommunications Records Litigation. Although the CCR plaintiffs originally sought an injunction against the TSP’s warrantless surveillance, after that program was replaced by warrantless surveillance under the purported legal authority of the Protect America Act (“PPA”) and, subsequently, the FISA Amendments Act (“FAA”), the lawsuit centered on a request for the destruction of all records of the plaintiffs’ communications that the government had obtained under the TSP. After protracted litigation, on June 10, 2013, the Ninth Circuit, in an unpublished opinion, relied on the Supreme Court’s opinion in Clapper v. Amnesty International to dismiss all of CCR’s claims for lack of standing, stating that “CCR’s claim of injury is largely factually indistinguishable from, and at least as speculative as, the claim rejected in Amnesty Int’l.”
In their petition for a writ of certiorari filed with the United States Supreme Court on January 2, 2014, the CCR plaintiffs asserted that, “The Amnesty decision was not intended to work a sea-change in the law of standing allowing the dismissal of suits, like this one, directed at utterly lawless surveillance carried out in the face of express Congressional prohibitions [50 U.S.C. Sec. 1809] without any supervision by the judiciary.” Pet. at 19-20. Contrary to the Ninth Circuit’s opinion, the plaintiffs alleged that their claim for standing was factually distinguishable from that of the Amnesty plaintiffs, relying, in particular, on the fact that “there were no judicially-supervised minimization standards applied under the [TSP] Program to protect legally privileged communications from interception and retention.” Pet. at 24. “In contrast, in Amnesty, the surveillance being challenged was notionally legal (in the sense of being authorized by statute [50 U.S.C. Sec. 1881a]) and required some judicial involvement and a minimization process.” Id.
Invoking Snowden’s revelations, the CCR plaintiffs also argued that the Supreme Court should grant certiorari because “[t]here are … ample grounds for this Court to revisit its decision in Amnesty.” Pet. at 32. The decision, according to the CCR plaintiffs, “appeared to be premised on assumptions that government surveillance was far more narrow in scope than subsequent events have disclosed, on misrepresentations about the government’s practice of disclosing that evidence was derived from FAA surveillance in criminal cases, and possibly also on this Court’s presumption that minimization practices applied to FAA surveillance were more restrictive than the policies the government has applied in practice.” Id.
On February 5. 2014, the Department of Justice waived its right to reply to CCR’s petition. By contrast, on February 15, 2014, reporter Marcia Coyle opined that revelations of the NSA’s monitoring of an American law firm’s communications with an Indonesian government client during trade talks with the United States (see the February 15, 2014 entry in “International Chronicle of Surveillance Events -2014”) might provide an impetus for the Supreme Court to reconsider its decision in Amnesty Int’l, and that the CCR case would provide a vehicle for doing so.
The Supreme Court denied certiorari, however, on March 3, 2014.
For a summary and chronology of the litigation and comprehensive links to legal documents, see http://ccrjustice.org/CCR-v-Obama.