Yury Byalik

ARGUMENT

I. RELYING ONLY ON THE PUBLICLY AVAILABLE INFORMATION ABOUT THE

WARRANTLESS WIRETAPPING PROGRAM, THE SOCIETY HAS SUFFICIENTLY
ESTABLISHED STANDING UNDER ARTICLE III OF THE UNITED STATES
CONSTITUTION BECAUSE THE ATTORNEY MEMBERS ARE OBLIGED ON
ACCOUNT OF THEIR PROFESSIONAL RESPONSIBILITY TO REFRAIN FROM
COMMUNICATING WITH THEIR CLIENTS IN VIOLATION OF THEIR FIRST
AMENDMENT RIGHTS.

The Circuit court properly held the Society has standing to challenge the government’s

Terrorist Surveillance Program (“TSP”) because it suffered an injury which is fairly traceable to

the challenged action of the defendant and the injury will be redressed by a favorable decision.

The Society consists of attorneys, academics, and political activists in the United States

who regularly communicate with individuals located overseas. (R at 10.) The government has

conceded that the communications by the Society are precisely the kinds of communications that

the government is targeting under the TSP. (R at 8.) As a result, the plaintiffs are presently and

continually being harmed. The Supreme Court has acknowledged that it is only necessary that

one plaintiff has standing. See Warth v. Seldin, 422 U.S. 490 (1986) (determining that an

association may have standing solely as the representative of its members). Thus any party in

the Society may bring this claim. Even though each individual member of the society has been

injured by the government’s actions, the focus of the injury will rest with the attorneys because

they are officers of the law and their “slightest divergence from rectitude involves the breach of

all their obligations.” Baker v. Humphrey, 101 U.S. 494, 500 (1880).

The attorneys’ injury is a direct result of the government’s failure to comply with the

Foreign Intelligence Surveillance Act (“FISA”) in enforcing the TSP. FISA specifically

provides “no otherwise privileged communication obtained in accordance with, or in violation

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of, the provisions of this subchapter shall lose its privileged character.” 50 U.S.C. § 1806(a)

(2008). The government, in contrast to the rules established by FISA, has admitted that under

the TSP, privileged communication such as those between an attorney and his client are not

excluded from being intercepted. (R at 9.)

Consequently, the attorneys were required by their professional obligations to notify their

clients about the TSP and the likelihood that any communication by telephone or email might be

monitored by the government. (R at 11.) The attorney-client privilege is one of the oldest

recognized privileges of confidential communications. Upjohn Co. v. United States, 449 U.S.

383, 390 (1981). The privilege is intended to promote honest, open communication between

attorneys and their clients and in so doing, “promote broader public interests in the observance of

law and the administration of justice.” Id. The relationship between an attorney and his client is

one of trust and confidence and requires, as a result, complete revelation of all facts which affect

the rights and obligations of either. Orr v. Waldorf-Astoria Hotel Co., 291 F. 343, 344 (8th Cir.

Minn. 1923). Additionally, an attorney has a duty to explain matters to his client “to the extent

reasonably necessary to permit the client to make informed decisions regarding the

representation.” Model Rules of Prof’l Conduct R.1.4(b) (1983). Furthermore, the rules

generally require an attorney to maintain confidential information that relates to the

representation of the client. Model Rules of Prof’l Conduct R.1.6 (1983). The comment to ABA

Model Rule 1.6 states that “[t]he confidentiality rule . . . applies not only to matters

communicated in confidence by the client but also to all information relating to the

representation, whatever its source. A lawyer may not disclose such information except as

authorized or required by the Rules of Professional Conduct or other law.” Model Rules of Prof’l

Conduct R.1.6 cmt. 3 (1983).

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 The government may attempt to undermine this obligation of an attorney by claiming that

it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the

administration of justice by interfering with national security. Model Rules of Prof’l Conduct

R.8.4(b) (1983). However, this argument is without merit because section (c) provides that it is

also a professional misconduct for a lawyer to engage in conduct involving dishonesty or

misrepresentation, such as not informing a client his communication is being tapped, which

would be in direct contradiction to section (b). Model Rules of Prof’l Conduct R.8.4(c) (1983);

ABA Model Rule 8.4(c). Moreover, the government’s argument is immaterial because of the

crime-fraud exception which provides that the attorney-client privilege does not apply when

legal representation is secured in the furtherance of intended, or present, continuing illegality.

United States v. Neal, 27 F.3d 1035, 1048 (5th Cir. 1994).

If the attorneys continued communications with their clients, the attorneys would violate

the Rules of Professional Responsibility and their ethical obligations. The attorneys’ only other

alternative to effectively represent their clients, is to travel overseas to meet with clients in

person. This is an immense financial burden on the attorneys and would require a considerable

amount of financial resources. This example of harm constitutes a classic form of injury in fact,

“indeed, it is often assumed without discussion.” Danvers Motor Co. v. Ford Motor Co., 432

F.3d 286, 292 (3d Cir. 2005). While it is difficult to reduce injury in fact to a specific formula,

economic injury is “one of the paradigmatic forms” and has been held to establish standing. Id. at

291. In Danvers Motors Co., the defendants’ required substantial expenditure of resources by

the plaintiffs in complying with a certification requirement, and the plaintiffs made very

significant out of pocket investments to comply. The Court held that such financial harm is

indistinguishable from a garden-variety civil lawsuit. They further opined that standing should

always exist to claim damages. Id. at 292. See, e.g., GMC v. Tracy, 519 U.S. 278, 286 (1997)
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(customers who pay more for a product because of a regulation allegedly "forbidden under the

Commerce Clause satisfy the standing requirements of Article III").

The attorneys in this case have suffered an injury because they have had no choice but to

change their behavior as a result of the governments wiretapping activity. Where a proscription

of activity occurs as a result of a defendants conduct, courts have consistently held that such a

“chill” was enough to establish standing. For example, in Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000), plaintiff’s presented affidavits and testimony that

asserted that Laidlaw’s chemical discharges, and the affiant members’ reasonable concerns about

the effects of those discharges, directly affected those affiant’s recreational, aesthetic and

economic interests. Id. One community member testified that he refrained from fishing,

camping, swimming, and other recreational activities near a river located by the defendant’s

facility because he was concerned that the water was polluted as a result of defendant’s

discharges. Id. at 182. Angela, another member, stated that she no longer engaged in similar

activities near the river because she was concerned about harmful effects from discharged

pollutants and that she and her husband would liked to have purchased a home near the river but

did not intend to do so because of such discharges. Id. The Court held that the sworn statements

adequately documented the “chilling” behavior and thus injury in fact. Id. at 83. Similarly, in

Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149 (4th Cir. 2000), a

community member testified that he and his family swim less in and eat less fish from the lake

because of his fears of pollution from Gaston Copper’s pollution in excess of its permit. Id. He

claimed that the pollution or threat of pollution from Gaston Copper's upstream facility has

adversely affected his and his family's use and enjoyment of the lake. Id. at 151. The Court

determined that the testimony plainly demonstrated injury in fact and is one “traditionally

thought to be capable of resolution through the judicial process.” Id. at 156.

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 It is also important to note that traditional requirements of standing are relaxed when

restraint of speech or expression is involved because of the potential for abuse of First

Amendment rights. Dombrowski v. Pfister, 380 U.S. 479, 486 (1965). As a result, the Supreme

Court has consistently recognized that threatened, rather than actual injury, can satisfy Article III

standing requirements. Heckler v. Mathews, 465 U.S. 728, 738 (1984); See, e.g., Valley Forge

Christian College v. Americans United for Separation of Church & State, 454 U.S. 464 (1982);

Gladstone Realtors v. Village of Bellwood, 441 U.S. 91 (1979). Further, “one does not have to

await the consummation of threatened injury to obtain preventive relief. If the injury is certainly

impending that is enough.” Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298

(1979).

Plaintiff’s injuries are also caused in part from the decisions of third parties to cease

communicating with the plaintiffs. See e.g., Socialist Workers Party v. Attorney Gen., 419 U.S.

1314 (1974) (finding article III standing where defendants activity had the effect of dissuading

delegates from participating in the convention). In this case, it would be reasonable to conclude

that potential clients of the attorneys would be dissuaded from using them for legal

representation if there is a chance that their communications would be tapped. As a result, the

injury would be both to the attorneys and the prospective clients as illustrated by the possible

loss of employment for the attorneys and the inability of clients to use those attorneys for their

representation.

The attorney’s inability to effectively represent their clients satisfies the injury in fact

requirement. The government in this case mistakes this injury as simply having a chilling effect

on attorney’s speech because they believe that no concrete harm exists since the plaintiffs cannot

prove they are being tapped. But see Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190

(9th Cir. 2007) (revealing that the NSA monitored electronic communications of Islamic
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foundation and their attorneys under similar circumstances present here). As a result, the

government’s reliance on either Reagan or Laird to support that position is misplaced. United

Presbyterian Church v. Reagan, 557 F. Supp. 61 (D.D.C. 1982); Laird v. Tatum, 408 U.S. 1

(1972).

In Reagan, plaintiffs claimed injury from the “chilling” of constitutionally protected

activities, which they may refrain from pursuing out of fear that such activities would cause them

to be targeted for surveillance. The problem with the government’s attempt to rely upon this sort

of harm to establish standing in the present case is that allegations of a subjective “chill” are not

an adequate substitute for a claim of specific present objective harm or a threat of specific future

harm. The court in Reagan opined that no part of the challenged Executive Order imposes or

even relates to any direct governmental constraint upon the plaintiffs. Reagan, 557 F. Supp. at

63. In the present situation, the government’s activity has a direct affect on attorney’s injuries

which cause them to suffer a great deal of harm in violation of their First Amendment Rights.

Similarly in Laird, the Supreme Court held that the mere existence, without more, of a

governmental investigative and data-gather activity is insufficient to support standing. Laird, 408

U.S. at 1. Plaintiffs claim arose out of their perception of the Army’s surveillance program.

They believe that it is inherently dangerous for the military to be concerned with activities in the

civilian sector and that the army may at some future date misuse the information in some way

that would cause direct harm to respondents. Laird, 408 U.S. at 13.

In contrast to Laird, the attorneys here do not simply complain of some generalized fear

of future misuse of intercepted communications. The attorneys here complain of specific present

and imminent harm that is not capable of being redressed without a favorable ruling. The

reasonableness of the attorneys’ fear of surveillance is sufficient to establish actual and imminent

harm because the TSP has forced the attorneys to choose between refraining from legally
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protected rights or requiring them to expend a substantial amount of resources; both of which

sufficiently establish injury for standing. See e.g., Warth v. Seldin, 422 U.S. 490, 499 (1975) (it

is well established that the injury required by Article III may exist solely by virtue of statutes

creating legal rights, the invasion of which creates standing).

Accordingly, courts have consistently distinguished Laird where plaintiffs have suffered

specific professional or job-related injuries like the kind sustained here. In Meese v. Keene, 481

U.S. 465, 475 (1987), plaintiff wished to exhibit three films but was deterred from doing so by a

statutory characterization of the films as political propaganda. Id. The Court held that plaintiff

has alleged and demonstrated more than a subjective chill. The Court found that he established

that the term “political propaganda” threatens to cause him cognizable injury because such

characterizations would damage his personal, political, and professional reputation. Meese, 481

U.S. at 473. The court found that the act in essence forces the plaintiff to choose between

foregoing use of his films for the exposition of his views or suffering an injury to his reputation.

Id. at 475; See also, Riggs v. Albuquerque, 916 F.2d 582 (10th Cir. 1990) (holding that lawyers,

political activists, and politically active organizations that were allegedly targets of

unconstitutional surveillance by intelligence had standing). The decisions in these cases fully

recognize that governmental action may be subject to constitutional challenge even though it has

only an indirect effect on the exercise of First Amendment rights.

Plaintiff’s injuries are traced to the TSP and would be redressed if the government was in

compliance with FISA. While injury, cause, and redressability are parts of standing that should

be analyzed independently, their proof often overlaps. Gaston Copper Recycling Corp., 204

F.3d at 154. The findings of causation and redressability flow naturally from the injury caused

by the TSP. If the government complied with the procedures set forth in FISA, they would be

required to follow the “minimization procedures” and communications between an attorney and
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his client would remain privileged. 50 U.S.C. § 1801(h) (2008). Had it not been for the TSP, the

attorneys would not be violating any duty by communicating with their clients and their clients

would not be concerned that their communications are being intercepted.

It is irrelevant to the adjudication of this suit that President George Bush decided not to

reauthorize the TSP. (R at 10.) A defendant is not permitted to have a case mooted as a result of

his voluntary termination of the allegedly unlawful conduct. Friends of the Earth, 528 U.S. at

174. If the government was allowed to have a case dismissed with their voluntary actions, they

would be able to avoid litigation every time by voluntarily refraining from the alleged

misconduct. See e.g., Riggs, 916 F.2d at 586 (determining that dismissal prior to discovery

would be inequitable under similar facts because plaintiffs have alleged a direct harm caused by

defendants’ actions; the defendants cannot argue on one hand that the plaintiffs have failed to

prove injury and, on the other hand, that the plaintiffs are not entitled to the very evidence that is

essential in proving that injury.)

CONCLUSION

This Court should affirm the Circuit Court’s decision that Society has standing under

Article III of the constitution and the state secret privilege does not bar its claim. In accordance

with the weight of authority, this case should be remanded to the lower court to be heard on the

merits.