clapper director national intelligence et al amnesty international usa et argued october decided february section foreign intelligence surveillance act fisa added fisa amendments act permits attorney general director national intelligence acquire foreign intelligence information jointly authorizing surveillance individuals persons reasonably believed located outside attorney general director national intelligence normally must obtain foreign intelligence surveillance fisc approval surveillance subject statutory conditions judicial authorization congressional supervision compliance fourth amendment respondents attorneys human rights labor legal media organizations persons claim engage sensitive international communications individuals believe likely targets surveillance day fisa amendments act enacted filed suit seeking declaration facially unconstitutional permanent injunction surveillance district found respondents lacked standing second circuit reversed holding respondents showed objectively reasonable likelihood communications intercepted time future suffering present injuries resulting costly burdensome measures take protect confidentiality international communications possible surveillance held respondents article iii standing pp establish article iii standing injury must concrete particularized actual imminent fairly traceable challenged action redressable favorable ruling monsanto geertson seed farms hreatened injury must certainly impending constitute injury fact llegations possible future injury sufficient whitmore arkansas pp respondents assert suffered injury fact fairly traceable objectively reasonable likelihood communications foreign contacts intercepted point argument fails initially second circuit objectively reasonable likelihood standard inconsistent threatened injury requirement respondents standing theory also rests speculative chain possibilities establish potential injury certainly impending fairly traceable first highly speculative whether government imminently target communications respondents parties since respondents persons targeted theory necessarily rests assertion foreign contacts targeted yet actual knowledge government targeting practices second even respondents demonstrate targeting foreign contacts imminent speculate whether government seek use surveillance instead one government numerous surveillance methods challenged third even respondents show government seek fisc authorization target respondents foreign contacts speculate whether fisc authorize surveillance reluctant endorse standing theories require guesswork independent decisionmakers exercise judgment see whitmore supra fourth even government obtain fisc approval target respondents foreign contacts unclear whether government succeed acquiring contacts communications fifth even government target respondents foreign contacts respondents speculate whether communications contacts incidentally acquired pp respondents alternative argument also unpersuasive claim suffer ongoing injuries fairly traceable risk surveillance requires take costly burdensome measures protect confidentiality communications respondents manufacture standing choosing make expenditures based hypothetical future harm certainly impending face threat certainly impending interception costs simply product fear surveillance insufficient create standing see laird tatum accordingly ongoing injuries respondents suffering fairly traceable pp respondents remaining arguments likewise unavailing contrary claim alleged injuries kinds injuries supported standing cases friends earth laidlaw environmental services toc meese keene monsanto supra suggestion held standing otherwise constitutionality never adjudicated legally factually incorrect first assumption respondents standing sue one standing reason find standing valley forge christian college americans separation church state second holding case means insulates judicial review pp reversed remanded alito delivered opinion roberts scalia kennedy thomas joined breyer filed dissenting opinion ginsburg sotomayor kagan joined opinion notice opinion subject formal revision publication preliminary print reports readers requested notify reporter decisions washington typographical formal errors order corrections may made preliminary print goes press james clapper director national intelligence et petitioners amnesty international usa et al writ certiorari appeals second circuit february justice alito delivered opinion section foreign intelligence surveillance act supp allows attorney general director national intelligence acquire foreign intelligence information jointly authorizing surveillance individuals persons reasonably believed located outside attorney general director national intelligence normally must obtain foreign intelligence surveillance approval respondents persons whose work allege requires engage sensitive international communications individuals believe likely targets surveillance respondents seek declaration unconstitutional well injunction surveillance question us whether respondents article iii standing seek prospective relief respondents assert establish injury fact objectively reasonable likelihood communications acquired point future respondents theory future injury speculative satisfy wellestablished requirement threatened injury must certainly impending whitmore arkansas even respondents demonstrate threatened injury certainly impending still able establish injury fairly traceable alternative argument respondents contend suffering present injury risk surveillance already forced take costly burdensome measures protect confidentiality international communications respondents manufacture standing choosing make expenditures based hypothetical future harm certainly impending therefore hold respondents lack article iii standing years debate congress enacted foreign intelligence surveillance act fisa authorize regulate certain governmental electronic surveillance communications foreign intelligence purposes see stat et seq kris wilson national security investigations prosecutions ed hereinafter kris wilson enacting fisa congress legislated backdrop decision dist eastern dist keith explained standards procedures law enforcement officials must follow conducting surveillance might required context surveillance conducted domestic purposes although keith opinion expressly disclaimed ruling scope president surveillance power respect activities foreign powers implicitly suggested special framework foreign intelligence surveillance might constitutionally permissible see constructing framework foreign intelligence surveillance congress created two specialized courts fisa congress authorized judges foreign intelligence surveillance fisc approve electronic surveillance foreign intelligence purposes probable cause believe target electronic surveillance foreign power agent foreign power specific facilities places electronic surveillance directed used used foreign power agent foreign power stat see ibid kris wilson additionally congress vested foreign intelligence surveillance review jurisdiction review denials fisc applications electronic surveillance stat kris wilson wake september attacks president george bush authorized national security agency nsa conduct warrantless wiretapping telephone communications one party communication located outside participant call reasonably believed member agent al qaeda affiliated terrorist organization app pet cert see american civil liberties union nsa aclu opinion batchelder january fisc issued orders authorizing government target international communications probable cause believe one participant communication member agent al qaeda associated terrorist organization app pet cert fisc orders subjected electronic surveillance occurring nsa program approval fisc see fisc judge subsequently narrowed fisc authorization surveillance however executive asked congress amend fisa provide intelligence community additional authority meet challenges modern technology international terrorism see congress enacted fisa amendments act fisa amendments act stat left much fisa intact established new independent source intelligence collection authority beyond granted traditional fisa kris wilson relevant fisa supp enacted part fisa amendments act supplements fisa authority creating new framework government may seek fisc authorization certain foreign intelligence surveillance targeting communications persons located abroad unlike traditional fisa surveillance require government demonstrate probable cause target electronic surveillance foreign power agent foreign power compare kris wilson unlike traditional fisa require government specify nature location particular facilities places electronic surveillance occur compare ed supp kris wilson present case involves constitutional challenge surveillance subject statutory conditions judicial authorization congressional supervision compliance fourth amendment section provides upon issuance order foreign intelligence surveillance attorney general director national intelligence may authorize jointly period year targeting persons reasonably believed located outside acquire foreign intelligence information surveillance may intentionally targeted person known person reasonably believed located abroad see also additionally acquisitions must comport fourth amendment moreover surveillance subject congressional oversight several types executive branch review see amnesty usa mcconnell supp sdny section mandates government obtain foreign intelligence surveillance approval targeting procedures minimization procedures governmental certification regarding proposed surveillance among things government certification must attest procedures place approved submitted approval submitted certification approval fisc reasonably designed ensure acquisition limited targeting persons reasonably believed located outside minimization procedures adequately restrict acquisition retention dissemination nonpublic information unconsenting persons appropriate guidelines adopted ensure compliance targeting limits fourth amendment procedures guidelines referred comport fourth amendment see foreign intelligence surveillance role includes determining whether government certification contains required elements additionally assesses whether targeting procedures reasonably designed ensure acquisition limited targeting persons reasonably believed located outside prevent intentional acquisition communication sender intended recipients known located analyzes whether minimization procedures meet definition minimization procedures section appropriate also assesses whether targeting minimization procedures consistent statute fourth amendment see respondents attorneys human rights labor legal media organizations whose work allegedly requires engage sensitive sometimes privileged telephone communications colleagues clients sources individuals located abroad respondents believe people exchange foreign intelligence information likely targets surveillance specifically respondents claim communicate telephone people government believes believed associated terrorist organizations people located geographic areas special focus government counterterrorism diplomatic efforts activists oppose governments supported government app pet cert respondents claim compromises ability locate witnesses cultivate sources obtain information communicate confidential information clients respondents also assert ceased engaging certain telephone conversations according respondents threat surveillance compel travel abroad order conversations addition respondents declare undertaken costly burdensome measures protect confidentiality sensitive communications ibid day fisa amendments act enacted respondents filed action seeking declaration face violates fourth amendment first amendment article iii principles permanent injunction use respondents assert characterize two separate theories article iii standing first claim objectively reasonable likelihood communications acquired point future thus causing injury second respondents maintain risk surveillance substantial forced take costly burdensome measures protect confidentiality international communications view costs incurred constitute present injury fairly traceable parties moved summary judgment district held respondents standing mcconnell supp appeal however panel second circuit reversed panel agreed respondents argument standing due objectively reasonable likelihood communications intercepted time future addition panel held respondents established suffering present injuries fact economic professional harms stemming reasonable fear future harmful government conduct second circuit denied rehearing en banc equally divided vote importance issue novel view standing adopted appeals granted certiorari reverse ii article iii constitution limits federal courts jurisdiction certain cases controversies explained principle fundamental judiciary proper role system government constitutional limitation jurisdiction actual cases controversies daimlerchrysler cuno internal quotation marks omitted raines byrd internal quotation marks omitted see summers earth island institute one element requirement plaintiffs must establish standing sue raines supra see also summers supra daimlerchrysler supra lujan defenders wildlife law article iii standing built principles serves prevent judicial process used usurp powers political branches summers supra supra raines supra valley forge christian college americans separation church state schlesinger reservists comm stop war keeping purpose doctrine ur standing inquiry especially rigorous reaching merits dispute force us decide whether action taken one two branches federal government unconstitutional raines supra see valley forge christian college supra schlesinger supra relaxation standing requirements directly related expansion judicial power richardson powell concurring see also summers supra schlesinger supra often found lack standing cases judiciary requested review actions political branches fields intelligence gathering foreign affairs see richardson supra plaintiff lacked standing challenge constitutionality statute permitting central intelligence agency account expenditures solely certificate cia director schlesinger supra plaintiffs lacked standing challenge armed forces reserve membership members congress laird tatum plaintiffs lacked standing challenge army program establish article iii standing injury must concrete particularized actual imminent fairly traceable challenged action redressable favorable ruling monsanto geertson seed farms slip see also summers supra defenders wildlife although imminence concededly somewhat elastic concept stretched beyond purpose ensure alleged injury speculative article iii purposes injury certainly impending internal quotation marks omitted thus repeatedly reiterated threatened injury must certainly impending constitute injury fact llegations possible future injury sufficient whitmore emphasis added internal quotation marks omitted see also defenders wildlife supra see daimlerchrysler supra friends earth laidlaw environmental services toc babbitt farm workers iii respondents assert establish injury fact fairly traceable objectively reasonable likelihood communications foreign contacts intercepted point future argument fails initial matter second circuit objectively reasonable likelihood standard inconsistent requirement threatened injury must certainly impending constitute injury fact whitmore supra internal quotation marks omitted see also daimlerchrysler supra laidlaw supra defenders wildlife supra babbitt supra furthermore respondents argument rests highly speculative fear government decide target communications persons communicate government choose invoke authority rather utilizing another method surveillance article iii judges serve foreign intelligence surveillance conclude government proposed surveillance procedures satisfy many safeguards consistent fourth amendment government succeed intercepting communications respondents contacts respondents parties particular communications government intercepts discussed respondents theory standing relies highly attenuated chain possibilities satisfy requirement threatened injury must certainly impending see summers supra rejecting standing theory premised speculative chain possibilities whitmore supra moreover even respondents demonstrate injury fact second link chain contingencies amounts mere speculation whether surveillance authority shows respondents satisfy requirement injury fact must fairly traceable first speculative whether government imminently target communications respondents parties section expressly provides respondents persons targeted surveillance see raggi dissenting denial rehearing en banc accordingly surprise respondents fail offer evidence communications monitored failure substantially undermines standing theory see aclu opinion batchelder concluding plaintiffs lacked evidence communications intercepted standing challenge alleged nsa surveillance indeed respondents even allege government sought fisc approval surveillance communications accordingly respondents theory necessarily rests assertion government target individuals namely foreign contacts yet respondents actual knowledge government targeting practices instead respondents merely speculate make assumptions whether communications foreign contacts acquired see opinion raggi example journalist christopher hedges choice assume international communications may subject government surveillance make decisions light assumption app pet cert emphasis added deleted similarly attorney scott mckay asserts ecause fisa amendments act assume every one international communications may monitored government emphasis added see also party invoking federal jurisdiction bears burden establishing standing summary judgment stage party longer rest allegations must forth affidavit evidence facts defenders wildlife respondents however set forth specific facts demonstrating communications foreign contacts targeted moreover authorizes mandate direct surveillance respondents fear respondents allegations necessarily conjectural see presbyterian church reagan cadc scalia opinion raggi simply put respondents speculate attorney general director national intelligence exercise discretion determining communications second even respondents demonstrate targeting foreign contacts imminent respondents speculate whether government seek use surveillance rather methods government numerous methods conducting surveillance none challenged even enactment fisa amendments act example government may still conduct electronic surveillance persons abroad older provisions fisa long satisfies applicable requirements including demonstration probable cause believe person foreign power agent foreign power see government may also obtain information intelligence services foreign nations brief petitioners although reach question government contends conduct human technical surveillance programs governed executive order see exec order cfr reprinted amended note following pp even respondents demonstrate foreign contacts imminently targeted indeed even show interception communications imminently occur still need show injury fairly traceable respondents speculate whether asserted interception authority satisfy fairly traceable requirement third even respondents show government seek foreign intelligence surveillance authorization acquire communications respondents foreign contacts respondents speculate whether authorize surveillance past reluctant endorse standing theories require guesswork independent decisionmakers exercise judgment whitmore example plaintiff theory standing hinged largely probability obtain federal habeas relief convicted upon retrial holding plaintiff lacked standing explained possible litigant prove advance judicial system lead particular result case see defenders wildlife decline abandon usual reluctance endorse standing theories rest speculation decisions independent actors section mandates government must obtain foreign intelligence surveillance approval targeting procedures minimization procedures governmental certification regarding proposed surveillance must example determine whether government procedures reasonably designed minimize acquisition retention prohibit dissemination nonpublicly available information concerning unconsenting persons see critically must also assess whether government targeting minimization procedures comport fourth amendment fourth even government obtain foreign intelligence surveillance approval target respondents foreign contacts unclear whether government succeed acquiring communications respondents foreign contacts fifth even government conduct surveillance respondents foreign contacts respondents speculate whether communications foreign contacts incidentally acquired sum respondents speculative chain possibilities establish injury based potential future surveillance certainly impending fairly traceable respondents alternative argument namely establish standing based measures undertaken avoid surveillance fares better respondents assert suffering ongoing injuries fairly traceable risk surveillance requires take costly burdensome measures protect confidentiality communications respondents claim instance threat surveillance sometimes compels avoid certain phone conversations tal generalities rather specifics travel conversations tr oral arg app pet cert second circuit panel concluded respondents already suffering ongoing injuries likelihood interception relevant question whether respondents ongoing injuries fairly traceable see opinion raggi analyzing fairly traceable element standing relaxed reasonableness standard see second circuit held plaintiffs established suffered present injuries fact economic professional harms stemming reasonable fear future harmful government conduct second circuit analysis improperly allowed respondents establish standing asserting suffer present costs burdens based fear surveillance long fear fanciful paranoid otherwise unreasonable see improperly waters fundamental requirements article iii respondents contention standing incurred certain costs reasonable reaction risk harm unavailing harm respondents seek avoid certainly impending words respondents manufacture standing merely inflicting harm based fears hypothetical future harm certainly impending see pennsylvania new jersey per curiam national family planning reproductive health cadc ongoing injuries respondents suffering fairly traceable law otherwise enterprising plaintiff able secure lower standard article iii standing simply making expenditure based nonparanoid fear judge raggi accurately noted second circuit panel reasoning respondents price plane ticket transform standing burden one requiring showing actual imminent interception one requiring showing subjective fear interception fanciful irrational clearly unreasonable internal quotation marks omitted thus allowing respondents bring action based costs incurred response speculative threat tantamount accepting repackaged version respondents first failed theory standing see aclu opinion batchelder another reason respondents present injuries fairly traceable even enacted similar incentive engage many countermeasures taking see instance respondent scott mckay declaration describes dissent heavily relies mckay knowledge thousands communications involving one clients monitored past app pet cert post surveillance conducted pursuant fisa authority predated see brief petitioners gonzales wl idaho thus government allegedly conducting surveillance mckay client congress enacted difficult see safeguards mckay claims implemented traced respondents face threat certainly impending interception costs incurred avoid surveillance simply product fear decision laird makes clear fear insufficient create standing see plaintiffs laird argued exercise first amendment rights chilled mere existence without army investigative activity acknowledging prior cases held constitutional violations may arise chilling effect regulations fall short direct prohibition exercise first amendment rights declared none cases involved chilling effect aris ing merely individual knowledge governmental agency engaged certain activities individual concomitant fear armed fruits activities agency might future take additional action detrimental individual llegations subjective adequate substitute claim specific present objective harm threat specific future harm plaintiffs laird respondents lack standing see ibid aclu supra opinion batchelder holding plaintiffs lacked standing allege subjective apprehension alleged nsa surveillance personal unwillingness communicate presbyterian church holding plaintiffs lacked standing challenge legality executive order relating surveillance effect produced fear subjected illegal surveillance deters conducting constitutionally protected activities foreclosed basis standing laird reasons discussed respondents injuries fairly traceable government purported activities subjective fear surveillance give rise standing iv respondents incorrectly maintain kinds injuries incurred injuries incurred respondents reasonable efforts avoid greater injuries otherwise likely flow conduct challenge kinds injuries held support standing cases laidlaw meese keene monsanto brief respondents initial matter none cases holds even suggests plaintiffs establish standing simply claiming experienced chilling effect resulted governmental policy regulate constrain compel action part moreover cases different present case laidlaw plaintiffs standing based proposition company continuous pervasive illegal discharges pollutants river cause nearby residents curtail recreational use waterway subject economic aesthetic harms unlawful discharges pollutants concededly ongoing issue whether nearby residents members organizational plaintiffs acted reasonably refraining using polluted area laidlaw therefore quite unlike present case concede respondents subject unlawful surveillance decision take preventive measures see aclu opinion batchelder distinguishing laidlaw ground gibbons concurring opinion raggi laidlaw resemble case undisputed government using surveillance acquire respondents communications sole dispute concerned reasonableness respondents preventive measures keene plaintiff challenged constitutionality government decision label three films political propaganda held plaintiff attorney state legislator standing demonstrated detailed affidavits exhibit films without incurring risk injury reputation impairment political career unlike present case keene involved based speculation potential governmental action plaintiff case unquestionably regulated relevant statute films wished exhibit already labeled political propaganda see ibid aclu opinion batchelder gibbons concurring monsanto respondents also rely likewise inapposite monsanto conventional alfalfa farmers standing seek injunctive relief agency decision deregulate variety genetically engineered alfalfa gave rise significant risk gene flow varieties alfalfa slip standing analysis case hinged evidence genetically engineered alfalfa fields currently planted major alfalfa seed production bees pollinate alfalfa range least two ten alfalfa seed farms concentrated area well within bees pollination range slip unlike conventional alfalfa farmers monsanto however respondents present case present concrete evidence substantiate fears instead rest mere conjecture possible governmental actions respondents also suggest held standing otherwise constitutionality challenged wrong maintain insulate government surveillance activities meaningful judicial review brief respondents respondents suggestion legally factually incorrect first assumption respondents standing sue one standing reason find standing valley forge christian college schlesinger see also richardson raines souter joined ginsburg concurring judgment second holding today means insulates judicial review described congress created comprehensive scheme foreign intelligence surveillance evaluates government certifications targeting procedures minimization procedures including assessing whether targeting minimization procedures comport fourth amendment dissatisfaction respondents may foreign intelligence surveillance rulings congressional delineation role irrelevant standing analysis additionally government intends use disclose information obtained derived acquisition judicial administrative proceedings must provide advance notice intent affected person may challenge lawfulness acquisition ed supp thus government prosecute one foreign clients using surveillance government required make disclosure although foreign client might viable fourth amendment claim see possible monitoring target conversations attorney provide grounds claim standing part attorney attorney certainly stronger evidentiary basis establishing standing respondents present case situation unlike present case least clear government acquired foreign client communications using surveillance finally electronic communications service provider government directs assist surveillance may challenge lawfulness directive fisc indeed behest service provider foreign intelligence surveillance review previously analyzed constitutionality electronic surveillance directives issued pursuant set fisa amendments see directives pursuant section foreign intelligence surveillance act holding provider standing directives constitutional hold respondents lack article iii standing demonstrate future injury purportedly fear certainly impending manufacture standing incurring costs anticipation harm therefore reverse judgment second circuit remand case proceedings consistent opinion ordered breyer dissenting james clapper director national intelligence et petitioners amnesty international usa et al writ certiorari appeals second circuit february justice breyer justice ginsburg justice sotomayor justice kagan join dissenting plaintiffs standing depends upon likelihood government acting authority supp harm intercepting least private foreign telephone conversations view harm speculative indeed likely take place future events commonsense inference ordinary knowledge human nature tell us happen often found occurrence similar future events sufficiently certain support standing dissent contrary conclusion article iii specifies judicial power extends actual cases controversies thereby helps ensure legal questions presented federal courts take form abstract intellectual problems resolved rarified atmosphere debating society instead questions presented concrete factual context conducive realistic appreciation consequences judicial action valley forge christian college americans separation church state purpose article iii lujan defenders wildlife similar babbitt farm workers similar recognized precise boundaries case controversy requirement matters degree discernible precise test ibid time developed subsidiary set legal rules help determine constitution requirement met see lujan stevens concurring judgment thus plaintiff must standing bring legal claim plaintiff standing said action omission plaintiff challenges caused cause plaintiff suffer injury concrete particularized actual imminent redress able favorable decision internal quotation marks omitted one denies government interception private telephone conversation amounts injury concrete particularized moreover plaintiffs respondents seek relief judgment declaring unconstitutional enjoining enforcement statutory provision authorizing interceptions judgment redress injury preventing thus basic question whether injury interception actual imminent ii since plaintiffs fear interceptions kind authorized important understand kind surveillance section authorizes congress enacted amendment foreign intelligence surveillance act et seq amendment act authorized government acting within monitor private electronic communications foreign country government purpose significant part obtain foreign intelligence information includes information concerning foreign power territory related national defense security conduct foreign affairs government surveillance target foreign power agent foreign power government used surveillance procedures designed minimize acquisition retention prohibit dissemination private information acquired americans addition government obtain approval foreign intelligence surveillance submit application describing specific target nature information sought type communications activities subjected surveillance certify significant part sought obtain foreign intelligence information ibid demonstrate probable cause believe specific target foreign power agent foreign power also describe procedures used minimize intrusions upon americans privacy compliance subsequently assess addition changed prior law three important ways first eliminated requirement government describe specific target identify facility surveillance directed thus permitting surveillance programmatic necessarily individualized basis second eliminated requirement target foreign power agent foreign power ibid third diminished authority insist upon eliminated authority supervise minimization procedures though government still must use general minimization procedures thus using authority government obtain approval surveillance electronic communications places within targets foreign territories showing purpose acquisition obtain foreign intelligence information use general targeting minimization procedures kind previously approved similarly important understand kinds communications plaintiffs say engage believe government intercept plaintiff scott mckay example says affidavit lawyer represented sami omar acquitted june terrorism charges continues represent addition facing criminal charges september named defendant several civil cases represents khalid sheik mohammed detainee military commissions guantánamo bay cuba representing clients communicate telephone email people outside including experts investigators attorneys family members others located abroad prior government intercepted telephone calls email communications involving client app pet cert another plaintiff sylvia royce says affidavit attorney represent mohammedou ould salahi prisoner held guantánamo bay enemy combatant connection representation salahi receive calls time time salahi brother university student germany told government threatened salahi family members arrested cooperate plaintiffs noted mckay longer represents mohammed royce longer represents ould salahi brief respondents changes irrelevant assess standing time suit filed see davis federal election event mckay continues represent al hussayen partner represents mohammed royce continues represent individuals held custody military overseas third plaintiff joanne mariner says affidavit human rights researcher work es involves trying track people rendered cia countries tortured many people cia said associated terrorist organizations research communicate telephone former detainees lawyers detainees relatives detainees political activists journalists fixers world including jordan egypt pakistan afghanistan gaza strip app pet cert plaintiffs including lawyers journalists human rights researchers say affidavits jobs require gather information foreigners located abroad regularly communicate electronically telephone foreigners located abroad communications exchange foreign intelligence information act defines iii several considerations based upon record along commonsense inferences convince high likelihood government acting authority intercept least communications described first plaintiffs engaged continue engage electronic communications kind amendment prior act authorizes government intercept communications include discussions family members detained guantanamo friends acquaintances persons investigators experts others knowledge circumstances related terrorist activities persons foreigners located outside foreign power agent foreign power plaintiffs state exchange persons foreign intelligence information defined include information relates international terrorism national defense security see ed supp see app pet cert second plaintiffs strong motive engage government strong motive listen conversations kind described lawyer representing client normally seeks learn circumstances surrounding crime civil wrong client accused fair reading affidavit scott mckay example taken together elementary considerations lawyer obligation client indicates mckay engage conversations concern suspected foreign terrorists client done conversations concern clients families colleagues contacts conversations concern persons connected said done least relation terrorist activities conversations concern political social commercial environments suspected terrorists lived worked forth see journalists human rights workers strong similar motives conduct conversations kind see declaration joanne mariner stating information exchange telephone relates terrorism counterterrorism much information relates foreign affairs time government strong motive conduct surveillance conversations contain material kind government seeks learn much reasonably learn suspected terrorists detained guantanamo well contacts activities along friends family members see executive office president office management budget statement administration policy part value new authority enable intelligence community collect expeditiously communications terrorists foreign countries may contact associate government motivated simply desire help convict government believes guilty also critical overriding need protect america terrorism see protection american people american interests home abroad requires access timely accurate insightful intelligence capabilities intentions activities terrorists third government past behavior shows sought hence likelihood continue seek information alleged terrorists detainees means include surveillance electronic communications pointed plaintiff scott mckay government authority law intercepted telephone calls email communications involving client mr app pet cert fourth government capacity conduct electronic surveillance kind issue degree capacity rests upon technology available government see kris wilson national security investigations prosecutions ed nsa technological abilities legendary describing national security agency capacity monitor broad facilities international switches see lichtblau risen spy agency mined vast data trove officials report times describing capacity trace analyze large volumes communications lichtblau shane bush pressed new report surveillance times may reporting capacity obtain access records many telephone calls made priest arkin hidden world growing beyond control washington post july reporting every day collection systems national security agency intercept store billion telephone calls types communications cf statement administration policy supra rejecting provision senate bill require intelligence analysts count number persons located whose communications reviewed impossible implement internal quotation marks omitted capacity also includes government authority obtain kind information issue private carriers verizon see told amici government expanding capacity see brief electronic privacy information center et al national security agency able conduct surveillance electronic communications domestic foreign points course exercise capacity government must intelligence authorization government rarely files requests fail meet criteria see letter ronald weich assistant attorney general joseph biden apr applications intelligence two withdrawn government remaining approved online http visited available clerk case file intelligence stated review circumscribed proceedings required fisa amendments act misc reason believe communications described fail meet conditions necessary approval moreover compared prior law simplifies thus expedites approval process making likely government use obtain necessary approval upshot similarity content strong motives prior behavior capacity point strong likelihood government intercept least plaintiffs communications including amendment act authorizes government intercept time nothing suggests presence special factor might support contrary conclusion government deny motive capacity listen communications kind described plaintiffs describe system avoiding interception electronic communication happens include party american lawyer journalist human rights worker one course always imagine special circumstance negates virtual likelihood matter strong true ordinary inferences future events perhaps despite pouring rain streets remain dry due presence special chemical ordinarily party seeks defeat strong natural inference must bear burden showing special circumstance exists one suggested special circumstance consequently need assume government job find combat terrorism order conclude high probability government intercept least communication least plaintiffs parties majority wrong describes harm threatened plaintiffs speculative iv majority plausibly says plaintiffs failed show threatened harm certainly impending ante internal quotation marks omitted majority appears concede see ante certainty never touchstone standing future inherently uncertain yet federal courts frequently entertain actions injunctions declaratory relief aimed preventing future activities reasonably likely highly likely absolutely certain take place degree certainty needed support standing use term certainly impending contrary sometimes used phrase certainly impending phrase described sufficient rather necessary condition jurisdiction see pennsylvania west virginia injury certainly impending enough see also babbitt occasions used phrase concerned whether alleged injury occur thus lujan considered threatened future injury consisted harm plaintiffs suffer soon visited project area claimed suffer environmental damage wrote mere intent day return project area show harm imminent soon might mean nothing lifetime internal quotation marks omitted similarly mcconnell federal election denied standing senator future injury stemming campaign finance law affect reelection fact said made injury remote temporally satisfy article iii standing still occasions recognizing imminence concededly somewhat elastic concept lujan supra referred used sometimes along certainly impending phrases reasonable probability suggest less absolute literal certainty see babbitt supra plaintiff must demonstrate realistic danger sustaining direct injury emphasis added friends earth laidlaw environmental services toc plaintiff burden establish standing demonstrating defendant allegedly wrongful behavior likely occur continue see also monsanto geertson seed farms slip reasonable probability substantial risk davis realistic impending threat direct injury medimmune genentech genuine threat enforcement department commerce house representatives substantially likely internal quotation marks omitted clinton city new york sufficient likelihood economic injury pennell san jose realistic danger internal quotation marks omitted blum yaretsky quite realistic threat bryant yellen likely buckley valeo per curiam reasonable probability taken together case law uses word certainly emphasizes rather literally defines immediately following term impending important holdings standing cases show standing exists often found standing occurrence relevant injury far less certain consider fairly typical cases consider pennell supra city ordinance forbade landlords raise rent charged tenant percent work unreasonably severe hardship tenant group landlords sought judgment declaring ordinance unconstitutional held standing landlords demonstrate danger sustaining direct injury result statute operation emphasis added found landlords done showing likelihood enforcement probability ordinance make landlords charge lower rents even though landlords shown intended raise relevant rents point causing unreasonably severe hardship tenants challenge increases city hearing examiners arbitrators find landlords even pennell realistic danger relevant harm occur consider blum supra group nursing home residents receiving medicaid benefits challenged constitutionality procedural grounds regulation permitted nursing home transfer less desirable home although medicaid committee recommended transfers transfer enjoined nursing home threatened transfer plaintiffs found standing threat transfers quite realistic hence sufficiently substantial quoting younger harris plaintiffs injury imaginary speculative quite realistic consider davis supra plaintiff candidate house representatives campaigns challenged constitutionality election law relaxed limits opponent contributions candidate spending exceeded certain limits opponent fact decided take advantage increased contribution limits statute allowed nonetheless found standing realistic impending threat certainty candidate opponent time plaintiff filed complaint threat facing plaintiffs realistic impending consider medimmune supra plaintiff patent licensee sought declaratory judgment patent invalid plaintiff face imminent threat suit continued making royalty payments patent holder explaining plaintiff standing assumed plaintiff stopped making royalty payments standing despite fact patent holder might bring suit rejected federal circuit reasonable imminent suit requirement suggested genuine threat enforcement likely sufficient internal quotation marks omitted genuine threat present moreover courts often found probabilistic injuries sufficient support standing duke power carolina environmental study group example plaintiffs group individuals living near proposed nuclear powerplant challenged constitutionality act statute limited plant liability case nuclear accident plaintiffs said without act defendants build nuclear plant building plant harm part emitting radiation environment found standing part due generalized concern exposure radiation apprehension flowing uncertainty health genetic consequences even small emissions ibid emphasis added see also monsanto supra slip substantial risk gene flow injures respondents several ways emphasis added see also lower cases mountain legal foundation glickman cadc plaintiffs attack government decision limit timber harvesting standing based upon increased risk wildfires natural resources defense council epa cadc plaintiffs attack government decision deregulating methyl bromide standing based upon increased lifetime risk developing skin cancer constellation energy commodities group ferc cadc standing based increased risk nonrecovery inherent reduction collateral securing debt uncertain amount sutton jude medical standing based increased risk harm caused implantation defective medical device johnson allsteel based increased risk employee retirement income security act beneficiary covered due increased amount discretion given erisa administrator law otherwise suppose federal faced claim homeowners allegedly unlawful practices created high risk homes flooded deny standing ground risk flood rather percent federal courts deny standing plaintiff diversity action claims anticipatory breach contract future breach depends probabilities defendant say threatened load wheat onto ship bound india despite promise send wheat one know certain happen perhaps defendant change mind perhaps ship turn head yet despite uncertainty constitution prohibit federal hearing claim see lord williston contracts ed plaintiff may bring anticipatory breach suit even though defendant promise one perform future yet broken defendant may still retract repudiation wisconsin power light century indemnity plaintiff sue insurer disclaimed liability costs incurred future environmental agencies required cleanup combs international ins similar federal courts deny standing plaintiff seeks enjoin nuisance building nearby pond plaintiff believes likely inevitably overflow land see jur injunctions noting injunction ordinarily preventive character restrains actions yet taken threaten injury central delta water agency standing seek injunction method operating dam highly likely severely hamper plaintiffs ability grow crops consolidated companies union pacific standing seek injunction requiring cleanup land adjacent plaintiff tract threat contaminants might migrate plaintiff tract neither ordinary declaratory judgment actions always involve degree certainty upon insists see maryland casualty pacific coal oil insurance company seek declaration need pay claim insured automobile driver accident even though driver yet found liable accident aetna life ins haworth insurance company seek declaration need pay plaintiff disability although plaintiff yet sought disability payments see also associated indemnity fairchild industries insured seek declaration insurance company must pay liability even insured found liable standing cases found reasonable probability future injury comes accompanied present injury takes form reasonable efforts mitigate threatened effects future injury prevent occurring thus monsanto slip plaintiffs group conventional alfalfa growers challenged agency decision deregulate genetically engineered alfalfa claimed deregulation harm neighbors plant genetically engineered seed bees obtain pollen neighbors plants bees harmfully contaminate conventional alfalfa genetically modified gene lower courts found reasonable probability injury occur ibid internal quotation marks omitted without expressing views probability found standing plaintiffs suffer present harm trying combat threat ibid plaintiffs example conduct testing find whether extent crops contaminated slip take measures minimize likelihood potential contamination ensure adequate supply alfalfa ibid held harms plaintiffs suffer even crops actually infected genetically modified gene sufficiently concrete satisfy prong constitutional standing analysis slip virtually identical circumstances present plaintiff mckay example points communicates abroad interests client client accused terrorism must make assessment whether client interests compromised government acquire communications app pet cert must either forgo communication travel abroad take measures protect confidentiality information believe particularly sensitive including travel expensive since travel expensive since forgoing communication compromise client interests since mckay assessment takes time effort case differ significantly monsanto whether consider plaintiffs present necessary expenditure time effort separate concrete particularized imminent harm consider additional evidence future harm interception likely occur see also friends earth holding plaintiffs curtailed recreational activities river due reasonable concerns effect pollutant discharges river standing meese keene stating need take affirmative steps avoid risk harm constitutes cognizable injury majority find support cases use words certainly impending deny standing claim read every standing case examined quite yet found case majority refers whitmore arkansas case denied standing prisoner challenged validity death sentence given different prisoner refused challenge sentence plaintiff feared absence appeal fellow prisoner death sentence missing state death penalty database thereby skew database making less likely challenges death penalty succeed found standing fellow prisoner lack appeal harmed plaintiff plaintiff separately obtained federal habeas relief reconvicted resentenced death sought review new sentence review death sentence affirmed compared artificially skewed database events seemed likely occur daimlerchrysler cuno taxpayers challenged constitutionality tax break offered state local governments car manufacturer found standing plaintiffs suffered resulting injury tax break depleted state local treasuries legislature responded raising taxes lujan case may come closest supporting majority also found standing pointed supra lujan case considered whether threatened harm occur relevant injury consisted visit environmental group members project site find unlawful environmental depredation pointed members alleged visit project sites soon wrote soon might refer almost time future way contrast ongoing threat terrorism means relevant interceptions likely take place imminently course denied standing cases involve injuries less likely likely occur recent case summers earth island institute example plaintiffs challenged regulation exempting certain timber sales public comment administrative appeal plaintiffs claimed regulations injured interfering esthetic enjoyment recreational use forests found harm unlikely occur support standing noted one plaintiff pointed specific affected forest visit concluded may chance hardly likelihood plaintiff wanderings bring parcel affected project unlawfully subject regulations emphasis added sum concedes see ante word certainly phrase certainly impending refer absolute certainty case law demonstrates constitution requires something akin reasonable probability high probability use standard necessary ensure actual concrete injury constitution demands considerations set forth parts ii iii supra make clear standard readily met case express view merits plaintiffs constitutional claims believe least plaintiffs standing make claims dissent respect majority contrary conclusion footnotes term person includes citizens aliens admitted permanent residence certain associations corporations see congress recently reauthorized fisa amendments act another five years see stat dissent attempts downplay safeguards established see post opinion breyer notably dissent directly acknowledge surveillance must comport fourth amendment see foreign intelligence surveillance must assess whether targeting minimization procedures consistent fourth amendment see suggested oral argument government help resolve standing inquiry disclosing perhaps camera proceeding whether intercepting respondents communications targeting minimization procedures using see tr oral arg suggestion puzzling initial matter respondents burden prove standing pointing specific facts lujan defenders wildlife government burden disprove standing revealing details surveillance priorities moreover type hypothetical disclosure proceeding allow terrorist attorney determine whether currently surveillance simply filing lawsuit challenging government surveillance program even terrorist attorney comply protective order prohibiting sharing government disclosures client postdisclosure decision whether dismiss suit lack standing surely signal terrorist whether name list surveillance targets cases uniformly require plaintiffs demonstrate literally certain harms identify come instances found standing based substantial risk harm occur may prompt plaintiffs reasonably incur costs mitigate avoid harm monsanto geertson seed farms slip see also pennell city san jose blum yaretsky babbitt farm workers extent substantial risk standard relevant distinct clearly impending requirement respondents fall short even standard light attenuated chain inferences necessary find harm see supra addition plaintiffs bear burden pleading proving concrete facts showing defendant actual action caused substantial risk harm plaintiffs rely speculation unfettered choices made independent actors defenders wildlife focus respondents supposed need travel abroad light potential surveillance respondents cite one specific instance travel attorney trip new york city meet lawyers see app pet cert domestic travel tenuous connection acquisitions may intentionally target person known time acquisition located see also jacobs dissenting denial rehearing en banc opinion raggi although respondents alternative theory standing rests primarily choices made based subjective fear surveillance respondents also assert third parties might disinclined speak due fear surveillance see app pet cert extent assertions based anything conjecture see defenders wildlife establish injury fairly traceable based third parties subjective fear surveillance see laird possibility judicial review context farfetched damrah example government made pretrial disclosure intended use fisa evidence prosecution defendant unsuccessfully moved suppress fisa evidence even though target surveillance sixth circuit ultimately held fisa procedures consistent fourth amendment see