Alito on Greymail: If Case is Not Dismissed For Lack of Jurisdiction, Terrorist Knows He’s Being Watched

February 26th, 2013

In Clapper v. Amnesty International, Justice Alito has an interesting discussion about how a court’s decision to dismiss, or not dismiss a case for lack of jurisdiction may tell a would-be terrorist if the government is monitoring him.

4 It was suggested at oral argument that the Government could help resolve the standing inquiry by disclosing to a court, perhaps through an in camera proceeding, (1) whether it is intercepting respondents’ communications and (2) what targeting or minimization procedures it is using. See Tr. of Oral Arg. 13–14, 44, 56. This suggestion is puzzling. As an initial matter, it is respondents’ burden to prove their standing by pointing to specific facts, Lujan v. Defenders of Wildlife, 504 U. S. 555, 561 (1992), not the Government’s burden to disprove standing by revealing details of its surveillance priorities. Moreover, this type of hypothetical disclosure proceeding would allow a terrorist (or his attorney) to determine whether he is currently under U. S. surveillance simply by filing a lawsuit challenging the Government’s surveillance program. Even if the terrorist’s attorney were to comply with a protective order prohibiting him from sharing the Government’s disclosures with his client, the court’s postdisclosure decision about whether to dismiss the suit for lack of standing would surely signal to the terrorist whether his name was on the list of surveillance targets.

If the case is dismissed, that means the suspect is not being monitored. If the case is not dismissed, then jurisdiction is present, and the suspect is being monitored. This is a form of what is known as greymail–attorneys using various proceedings in court to indirectly obtain classified information. Because the government does not want to release this information, they will instead change their enforcement practice.

And Alito seems awfully skeptical about the “even if” the attorney keeps the information secret.