February 26, 2013

Supreme Court Decides Clapper v. Amnesty International USA

On February 26, 2013, the Supreme Court decided Clapper v. Amnesty International USA, No. 11-1025, holding that attorneys and human rights, labor, legal, and media organizations who engage in sensitive international communications with individuals they believe to be likely targets of surveillance by the United States Government under Section 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C. §1881a, as added by the FISA Amendments Act of 2008, lack Article III standing to challenge the constitutionality of section 1881a.

Section 1881a allows the Attorney General and the Director of National Intelligence to acquire information, normally after obtaining the approval of the Foreign Intelligence Surveillance Court, by jointly authorizing the surveillance of individuals who are not United States persons and are reasonably believed to be located outside the United States. Plaintiffs were a group of United States individuals and organizations whose work requires them to engage in sensitive international communications with individuals they believe are likely targets of government surveillance under section 1881a as a result of group affiliations, geographic locations or activist beliefs. Plaintiffs claimed that section 1881a is causing and will cause them injury because they have and will continue to employ costly and burdensome measures to protect the confidentiality of their communications with these individuals. Plaintiffs therefore sought both a declaration that section 1881a is unconstitutional and a permanent injunction against surveillance under section 1881a. The District Court found that the respondents lacked Article III standing. The Second Circuit reversed, concluding that respondents showed an objectively reasonable likelihood that their communications would be intercepted in the future and that they are suffering present injuries stemming from a reasonable fear of future harmful government conduct. The Second Circuit denied rehearing en banc by an equally divided vote.

The Supreme Court reversed and remanded. The Court determined that Plaintiffs could only speculate as to how the Government would exercise its discretion in determining which communications to target under section 1881a. Rejecting the Second Circuit's "objectively reasonable likelihood" standard, the Court first concluded that Plaintiffs had failed to show that "threatened injury must be certainly impending to constitute injury in fact" as required. Plaintiffs' theory of standing relied instead on a "highly attenuated chain of possibilities" that did not satisfy either the requirement that threatened injury be certainly impending or that any injury in fact was fairly traceable to section 1881a, as the government has numerous other methods of conducting surveillance which were unchallenged in this case.

The Court also determined that Plaintiffs' claims of standing based on present measures taken to avoid section 1881a surveillance, like traveling abroad to converse in person or talking in generalities rather than specifics, also failed to meet standing requirements. Plaintiffs "cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending." Further, any ongoing injuries Plaintiffs suffered were not fairly traceable to section 1881a—to decide otherwise would be to accept a repackaged version of Plaintiffs' first failed theory of standing. The Court also noted that Plaintiffs "had a similar incentive to engage in many of the countermeasures they are now taking" even before section 1881a was enacted because of pre-§1881a surveillance methods. The Court then distinguished its previous Laidlaw, Keene, and Monsanto cases and rejected respondents' argument that a conclusion of no standing in this case insulated section 1881a from judicial review.

Justice Alito delivered the opinion for the Court. Justice Breyer filed a dissenting opinion in which Justices Ginsburg, Sotomayor, and Kagan joined.

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