February 26, 2013
The Supreme Court issued a 5-4 decision today in Clapper v. Amnesty International (11-1025), a challenge to the 2008 expansion of the Foreign Intelligence Surveillance Act (“FISA”).
Congress amended FISA in 2008 to authorize the government to conduct surveillance on individuals who are not “United States persons,” and are reasonably believed to be outside the United States. Soon after, a group of attorneys, human rights advocates and media organizations (the respondents) filed a constitutional challenge to the FISA amendments – particularly section 1881a. They claimed that they engage in sensitive international communications with people who are likely targets of such FISA surveillance.
The Court ruled today that the respondents challenging FISA lacked standing under Article III of the Constitution to bring a constitutional challenge to the FISA statute. In so ruling, the Court did not reach the issue of the constitutionality of the FISA provision.
Justice Alito delivered the opinion of the Court which was joined by Chief Justice Roberts, and Justices Scalia, Kennedy and Thomas.
Alito wrote that “respondents’ theory of future injury is too speculative to satisfy the well-established requirement that threatened injury must be “certainly impending.” Further, Alito ruled that even if the groups challenging FISA could show a possible injury, they could not show that the impending injury was “fairly traceable” to the FISA section at issue. Finally, the Court rejected the argument that the respondents were suffering a current injury from expenses necessary to avoid FISA surveillance writing, “respondents cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending.”
Justice Breyer filed a dissenting opinion which was joined by Justices Ginsburg, Sotomayor and Kagan.
Breyer wrote that the injury the respondents complained of was not speculative and the facts before the Court were sufficient to satisfy the Article III requirement of an actual case and controversy. Breyer wrote that “several considerations, based upon the record along with commonsense inferences, convince me that there is a very high likelihood that Government, acting under the authority of §1881a, will intercept at least some of the communications” of the respondents.
As such, the dissent asserted that the “majority is wrong when it describes the harm threatened plaintiffs as ‘speculative.’” Justice Breyer concluded that the word “certainly” in the phrase “certainly impending” injury does not require absolute certainty of injury, rather a reasonable or high probability. The dissent concluded that the respondents met this reasonable or high probability standard in their case and thus had Article III standing.