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Supreme Court Issues Decision in Clapper v. Amnesty Int’l: Plaintiffs Lack Standing

Last week the U.S. Supreme Court (USSC) issued a decision in the much talked about case Clapper v. Amnesty International. As you may recall, the respondents in this case (petitioners below)—attorneys and human rights, labor, legal, and media organizations—challenged the constitutionality of §1881(a) of the 2008 FISA Amendments Act.


Two such respondents included Scott McKay, the former attorney for Khalid Sheik Mohammed (who is now represented by McKay’s partner), and Sylvia Royce, the current attorney for Guantanamo detainee and alleged enemy combatant Mohamedou Ould Salahi. Specifically, the respondents filed suit seeking permanent injunction against §1881(a)-authorized surveillance and a declaration that the provision is facially unconstitutional.

The respondents argued §1881(a) is facially unconstitutional because surveillance under this section would yield communications to which the respondents are parties as they often engage in sensitive international communications with individuals who they believe are likely targets of such surveillance. In a 5-4 decision, the Court held the respondents did not have Article III standing and, therefore, did not address the provision’s constitutionality.

Prior to §1881(a) taking effect, FISA authorized the Government to monitor private electronic communications between the United States and a foreign country so long as the following conditions were met: 1) the purpose of the surveillance was to obtain foreign intelligence information; 2) the target of the surveillance had to be “a foreign power or an agent of a foreign power”; 3) the Government’s surveillance procedures had to be designed so as to “minimize the acquisition and retention, and prohibit the dissemination, of” any private information acquired about Americans.

Section 1881(a) allows the Attorney General (AG) and Director of National Intelligence (DNI) to obtain foreign intelligence information “by jointly authorizing the surveillance of individuals who are not ‘United States persons’ and are reasonably believed to be located outside the United States. Before doing so, the [AG] and the [DNI] normally must obtain the Foreign Intelligence Surveillance Court’s (FISC) approval.”

According to Justice Breyer’s dissent, §1881(a) essentially changed FISA in three significant ways. First, it “eliminated the requirement that the Government describe to the court each specific target and identify each facility at which its surveillance would be directed, thus permitting surveillance on a programmatic, not necessarily individualized basis.” It also removed the requirement that the Government’s target be a “foreign power or an agent of a foreign power.” Lastly, Breyer believes, “it diminished the court’s authority to insist upon, and eliminated its authority to supervise, instance-specific privacy-intrusion minimization procedures.”

The respondents’ asserted standing based on three arguments. First, respondents claimed they suffered “injury in fact fairly traceable to §1881(a) because there was an objectively reasonable likelihood that their communications with their foreign contacts will be intercepted under §1881(a) at some point.” The Court found this assertion of injury too speculative to establish a “concrete, particularized, and actual or imminent” injury because, among other reasons, it is “highly speculative” whether the Government will target the purportedly problematic communications and, even if such communications were targeted, it is similarly speculative whether the Government would target them pursuant to §1881(a).

The respondents also claimed that they suffered “ongoing injuries” fairly traceable to the provision because “the risk of §1881(a) surveillance requires them to take costly and burdensome measures to protect the confidentiality of their communications.” The Court struck down this argument stating the respondents “cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending.”

Lastly, the respondents suggested they established standing because, if the Court did not so find, the constitutionality of §1881(a) would never be adjudicated. In response, the Court cited Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. in stating “[t]he assumption that if respondents have no standing to sue, no one would have standing is not a reason to find standing.” Moreover, the holding in this case, according to the Court, “by no means insulates §1881(a) from judicial review” as Congress has established an evaluation scheme using the FISC to review the Government’s certifications, targeting procedures, and minimization procedures.

Justice Breyer, in his dissent, which was joined by Justices Ginsburg, Sotomayor, and Kagan, believes that the future harm alleged is not “speculative,” as the majority claims, but, rather, it is “as likely to take place as are most future events that commonsense interference and ordinary knowledge of human nature tell us will happen.”



You can read the full USSC opinion here.

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2 Responses to “Supreme Court Issues Decision in Clapper v. Amnesty Int’l: Plaintiffs Lack Standing”

  1. […] claims.  Today, I am looking at the issue of standing in light of the opinion earlier this year Clapper v. Amnesty International.  As a reminder, tomorrow I’m taking a look at the Court’s decision to grant Plaintiffs’ […]

  2. […] fairly brief report uses cases such as Clapper v. Amnesty International (see also here) and, to a lesser extent, ACLU v. Clapper and Klayman v. Obama to review the legal […]

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