CLAPPER V. AMNESTY INTERNTIONAL USA
133 S.Ct. 1138 (2013)
NATURE OF THE CASE: Clapper (D) appealed the judgment of the Court of Appeals, which held
that Amnesty (Ps) had standing to challenge §1881a.
FACTS: Under 50 U.S.C. §1881a, the Attorney General and the Director of National
Intelligence may acquire 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. All they need do is obtain the Foreign Intelligence
Surveillance Court's (FISC) approval. Surveillance under §1881a is subject to statutory
conditions, judicial authorization, congressional supervision, and compliance with the
Fourth Amendment. Ps (attorneys and human rights, labor, legal, and media organizations) are
United States persons who claim that they engage in sensitive international communications
with individuals who they believe are likely targets of §1881a surveillance. Ps sought a
declaration that §1881a is unconstitutional, as well as an injunction against
§1881a-authorized surveillance. Ps assert that they can establish injury in fact because
there is an objectively reasonable likelihood that their communications will be acquired
under §1881a at some point in the future. Unlike traditional FISA, §1881a does not require
the government, to specify the nature and location of each of the particular facilities or
places at which the electronic surveillance will occur. Surveillance under §1881a may not be
intentionally targeted at any person known to be in the United States or any U.S. person
reasonably believed to be located abroad. §§1881a(b)(1)-(3). Acquisitions under §1881a must
comport with the Fourth Amendment. Surveillance under §1881a is subject to congressional
oversight and several types of Executive Branch review. Minimization procedures must
adequately restrict the acquisition, retention, and dissemination of nonpublic information
about unconsenting U.S. persons, as appropriate. The Foreign Intelligence Surveillance
Court's role includes determining whether the Government's certification contains the
required elements and it assesses whether the targeting procedures are “reasonably designed”
(1) to “ensure that an acquisition . . . is limited to targeting persons reasonably believed
to be located outside the United States” and (2) to “prevent the intentional acquisition of
any communication as to which the sender and all intended recipients are known . . . to be
located in the United States.” Ps claim injury in that §1881a compromises their ability to
locate witnesses, cultivate sources, obtain information, and communicate confidential
information to their clients. Ps claim that threat of surveillance will compel them to
travel abroad in order to have in-person conversations. In addition, Ps declare that they
have undertaken “costly and burdensome measures” to protect the confidentiality of sensitive
communications. The District Court held that respondents do not have standing. A panel of
the Second Circuit reversed. Ps had standing due to the objectively reasonable likelihood
that their communications will be intercepted at some time in the future. The court also
held that Ps established that they are suffering “present injuries in fact--economic and
professional harms--stemming from a reasonable fear of future harmful government conduct.”
The Supreme Court granted certiorari.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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