October 29, 2012
In 2008, Congress passed the FISA Amendments Act of 2008 (FAA), which revised the procedures for authorizing certain foreign intelligence collection, including expanded authority to collect information on persons outside of the United States using electronic surveillance. Additionally, the new procedures allow the government to disclose less information before targeting people reasonably believed to be abroad. Shortly after Congress passed the FAA, several organizations, including Amnesty International and the American Civil Liberties Union (ACLU), filed a lawsuit in federal court challenging the act’s constitutionality. The district court dismissed the lawsuit because it found the organizations lacked standing. The Second Circuit Court of Appeals reversed, and now the Supreme Court must decide if Amnesty International and other organizations have a sufficient stake to allow them to move forward with their constitutional challenges to the FAA. Amnesty International and other organizations argue that they have standing based on a reasonable fear that the government will monitor some of their communications and based on the costly methods used to prevent that monitoring. Director of National Intelligence James Clapper argues that the groups do not have standing because their injuries are not imminent, they do not have ongoing or present injuries, and self-inflicted harms are not recognizable injuries. The decision in this case will likely result in a rebalancing of the competing interest in government transparency and safeguarding national security. Further, the decision will likely cause one side to incur greater costs either in litigating more cases based on alleged, unproven surveillance or in protecting confidential communications against unknowable surveillance.
Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1881a (Supp. II 2008)- referred to here as Section 1881a- allows the Attorney General and Director of National Intelligence to authorize jointly the "targeting of [non-United States] persons reasonably believed to be located outside the United States" to acquire "foreign intelligence information," normally with the Foreign Intelligence Surveillance Court's prior approval of targeting and other procedures. 50 U.S.C. 1881a(a), (b), (g)(2) and (i)(3); cf. 50 U.S.C. 1881a(c)(2). Respondents are United States persons who may not be targeted for surveillance under Section 1881a. Respondents filed this action on the day that Section 1881a was enacted, seeking both a declaration that Section 1881a is unconstitutional and an injunction permanently enjoining any foreign-intelligence surveillance from being conducted under Section 1881a. The question presented is:
Whether respondents lack Article III standing to seek prospective relief because they proffered no evidence that the United States would imminently acquire their international communications using Section 1881a-authorized surveillance and did not show that an injunction prohibiting Section 1881a-authorized surveillance would likely redress their purported injuries.
Does a group of international organizations, lawyers, and media personnel have standing to sue for prospective relief based on their allegation that the United States would imminently acquire their international communications using surveillance authorized under the Foreign Intelligence Surveillance Act of 1978?
- Adam Liptak, Supreme Court Agrees to Hear Surveillance Case, N.Y. Times, May 21, 2012.
- Robert Barnes, Supreme Court Agrees to Hear Case on Electronic Surveillance, Wash. Post, May 21, 2012.
- Wex: Standing
- Wex: Electronic Surveillance
- Fact Sheet, FISA Amendments Act of 2008, Wall Street Journal
- James Risen and Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. Times, Dec. 16 2005