SCOTUS denies Amnesty International’s FISA challenge
WASHINGTON — The U.S. Supreme Court has ruled that Amnesty International and a host of lawyers, journalists and other civic groups, may not challenge the expansion of FISA, a surveillance law used to monitor conversations of foreign spies and terrorist suspects.
“To establish Article III standing, an injury must be “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling,” the Supreme Court said in a slip opinion.
“Respondents assert that they have suffered injury in fact that is fairly traceable to §1881a because there is an objectively reasonable likelihood that their communications with their foreign contacts will be intercepted under §1881a at some point. This argument fails. Initially, the Second Circuit’s “objectively reasonable likelihood” standard is inconsistent with this Court’s “threatened injury” requirement.”
Section 1881a of FISA, the Foreign Intelligence Surveillance Act of 1978, permits the U.S. Attorney General and the Director of National Intelligence to 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.
Before monitoring targets, the Attorney General and the Director of National Intelligence normally must obtain the Foreign Intelligence Surveillance Court’s (FISC) approval, maintaining statutory conditions, judicial authorization, congressional supervision, and compliance with the Fourth Amendment.
Respondents in the FISA case, attorneys and human rights, labor, legal, and media organizations, argued that they engage in sensitive international communications with individuals who they believe are likely targets of FISA surveillance.
On the day that the §1881a FISA Amendments Act was enacted, respondents filed a law suit, seeking a declaration that the amendment is facially unconstitutional and seeking a permanent injunction against §1881a-authorized surveillance.
The District Court in the matter found that respondents lacked standing, but the Second Circuit Court reversed, holding that respondents showed “objectively reasonable likelihood” that their communications will be intercepted at some time in the future.
The Second Circuit Court also held that respondents are suffering present injuries resulting from costly and burdensome measures they take to protect the confidentiality of their international communications from possible §1881a surveillance.
The Supreme Court’s decision Tuesday reverses the Second Circuit Court ruling. The Supreme Court decision does
not determine whether §1881a surveillance is unconstitutional, leaving Americans free to challenge the constitutionality of FISA and §1881a sirveillance should they suffer injury.
The case is:
CLAPPER, DIRECTOR OF NATIONAL INTELLIGENCE,
ET AL. v. AMNESTY INTERNATIONAL USA ET AL.