The U.S. Supreme Court on Tuesday ended a nearly five-year effort by a coalition of lawyers, human rights workers, media organizations and others to challenge the constitutionality of the nation's major federal surveillance law.
In a 5-4 decision in Clapper v. Amnesty International USA, the justices ruled that the coalition, represented by the American Civil Liberties Union, did not have standing to bring the lawsuit.
The coalition filed its lawsuit on the day that Congress enacted the Foreign Intelligence Surveillance Amendments Act of 2008. The suit charged that the act violated the plaintiffs' free speech and privacy rights as well as the Constitution's separation of powers. The U.S. Court of Appeals for the Second Circuit had held that the lawsuit could go forward.
The 2008 act expanded the government's authority to use electronic surveillance. It 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" for a period of up to one year to acquire "foreign intelligence information."
The amendments specify that the surveillance may not intentionally target an American—whether that person is known to be in the United States or is reasonably believed to be outside the United States—and may not target a person outside the United States "if the purpose is to target a particular, known person reasonably believed to be in the United States."
The amendments also require that the surveillance be conducted consistent with the Fourth Amendment. No individualized suspicion or probable cause addressing each target is required. Instead, the Foreign Intelligence Surveillance Court (FISA Court) may approve certifications by the attorney general and the director that identify categories of foreign intelligence targets.
During arguments before the justices last October, the ACLU's Jameel Jaffer said his clients engage in sensitive communications with likely targets of the act's surveillance. For example, some of his client-lawyers represent Guantánamo Bay, Cuba, detainees. A number of them already have taken sometimes costly and burdensome steps in an attempt to protect their communications. Those costs, Jaffer argued, are sufficient to establish standing to sue.
The requirements for Article III standing are an injury that is concrete, particularized, actual or imminent; redressable by a court; and fairly traceable to the challenged action.
In his majority opinion for the Court, Justice Samuel Alito Jr. called "too speculative" the coalition's theory that there was a reasonable likelihood that its members' communications would be acquired under the act at some point in the future. And even if they could demonstrate that the injury is "certainly impending," he wrote, "They still would not be able to establish that this injury is fairly traceable" to the act.
The majority also rejected the coalition's alternative theory of standing: that they are suffering present injury because the risk of surveillance already has forced them to take costly steps to protect the confidentiality of their communications.
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