Restricting Access to Federal Courts, in Three Parts

Two significant developments in the post-9/11 national security cases have resulted in restricted access to the federal courts: The Fourth Circuit's 2007 ruling in El-Masri v. Tenet, expanding the state secrets privilege (and two successive administrations' extraordinary state secrets claims in Mohamed v. Jeppesen Dataplan, Inc. in the Ninth Circuit); and the Supreme Court's 2008 ruling in Ashcroft v. Iqbal, heightening the pleading standard for plaintiffs in federal court.

Now in Amnesty Int'l USA v. Blair, the Second Circuit case challenging the FISA Amendments Act of 2008, or the "FAA," we may be looking at a third.

The FAA authorizes broad surveillance of certain international communications.  The plaintiffs in Amnesty--a group of civil and human rights organizations--alleged that this violated their First and Fourth Amendment rights and separation-of-powers principles.  The district court threw Amnesty out for lack of standing: The plaintiffs failed to allege that they in fact had been surveilled under the FAA, even if they alleged a "well founded fear" of surveillance and significant costs to avoid surveillance.

If the Second Circuit upholds the district court's ruling, the government could have a third new way to dismiss national security cases--lack of standing.  Here's how it might work:

1.  The plaintiffs in any national security case--extraordinary rendition (as in El-Masri, Mohamed, and Iqbal) or unconstitutional surveillance (as in Amnesty)--would have to allege a more specific harm than the harm alleged in Amnesty to avoid dismissal for lack of standing.

2.  But in order to do this, plaintiffs would need information they don't have--and can't get (without getting past a motion to dismiss and into discovery).  They would need to speculate--the problem in Iqbal, which was dismissed for lack of sufficiently pleaded facts.

3.  And in order to get around Iqbal, plaintiffs would not only need information they don't have, but also information that, by the government's reckoning in El-Masri and Mohamed, constitutes a state secret.  Even if plaintiffs could navigate standing (1.) and pleading (2.), El-Masri's version of the state secrets privilege (which is also the government's version) is a game ender.

This triple protection for the government means that plaintiffs would face nearly insurmountable obstacles to gain access to the federal courts in national security cases.  And as we've seen in the wake of Iqbal, these protections could conceivably spill over to restrict access in non-national security cases, as well.

Two pending cases are critical: The Ninth Circuit's en banc consideration of Mohamed (which was argued earlier this month); and the Second Circuit's consideration of Amnesty.  In Mohamed, the full Ninth Circuit is considering whether to uphold the three-judge panel's ruling rejecting the administration's sweeping state secrets claim.  In Amnesty, the Second Circuit is considering whether to uphold the district court's dismissal for lack of standing.  These cases will provide important signals about the future of access to the federal courts.

SDS