A Closer Look at The Unusual EPIC Writ That Bypasses Lower Courts
Don't like a court order? You could appeal it (well, in this case, arguably they couldn't), or, if you're feeling lucky, you could try for the "Hail Mary" remedy of a writ of mandamus.
The latter was employed by the Electronic Privacy Information Center, a privacy advocacy organization that keeps lawyers on staff to litigate important issues such as the ongoing NSA surveillance scandal. As customers of Verizon, they found themselves snooped-upon, yet were without a remedy, as they weren't a party to the secret court proceedings that authorized the NSA-Verizon surveillance.
Noting that the Foreign Intelligence Surveillance Court and it's associated Court of Review were outside of the regular court systems, and that they lacked standing to appeal the decision within that system, they asked the Supreme Court earlier this week for that extraordinary remedy. Lets take a closer look at their arguments:
The Procedural Mechanisms
Writ of Mandamus
Let’s start with the obvious: writs of mandamus are extremely rarely granted. One might even say that it would take an EPIC situation for the Supreme Court to exercise its discretionary power in this instance. However, EPIC maintains that this is exactly such a situation:
[T]he FISA does not allow Verizon customers, including, EPIC to challenge the order or seek review of the order before the FISC or Foreign Intelligence Surveillance Court of Review … Consequently, EPIC can only obtain relief with a writ of mandamus from this Court. Mandamus is an extraordinary remedy, but the Verizon Order carries extraordinary ramifications.
Writ of Certiorari
EPIC barely addresses the traditional route, and for good reason: it doesn’t seem to apply. Though the title of their petition to the Supreme Court asks for a writ of mandamus or a writ of certitorari, the latter would apply had the case been appealed through intermediary courts of appeal — the same courts which, as EPIC already noted in their mandamus discussion, are closed to private parties.
What About Clapper?
Earlier this year, the Supreme Court handed down a relevant decision in Clapper v. Amnesty International, which found a lack of standing by Amnesty International and others to challenge the FISA because they could not prove that they had suffered an injury. Justice Alito called their fear of surveillance “highly speculative.”
That fear is not quite as speculative now, at least, if they are Verizon customers (or contacted a Verizon customer). EPIC notes that their attorneys, who often bring suit against the NSA and other government agencies, are Verizon customers, and therefore were actually subject to the overbroad surveillance. In addition to basic privacy issues, this creates a whole mess of attorney-client privilege questions.
That’s quite the distinction, made provable by Edward Snowden’s leaked copy of a Foreign Intelligence Surveillance Court’s secret order.
Will it Work?
Short answer? Probably not.
Even if everything EPIC asserts is true (and it seems to be), the All Writs Act, which authorizes the Supreme Court to issue writs of mandamus, is completely discretionary. Plus, as Professor Steve Vladek quite convincingly argues, that same argument, for a writ of mandamus under the All Writs Act, could be used to justify a petition in either the FISC or the Foreign Intelligence Surveillance Court of Review, even though a direct appeal is unavailable.
In other words, because the All Writs Act procedures are a rarely used shortcut to any appeals court, the Supreme Court is unlikely to jump in when a lower court could do so as well.
- Petition for a Writ of Mandamus and Prohibition, or a Writ of Certiorari (Electronic Privacy Information Center)
- NSA Surveillance Lawsuit Ironically Dismissed as ‘Speculative’ (FindLaw’s U.S. Ninth Circuit Blog)
- Clapper et al v. Amnesty International et al (Supreme Court)
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