Clapper v. Amnesty International USA
568 U.S. 398, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013)
Rule of Law:
To establish Article III standing to challenge a government surveillance program, a plaintiff must show that a threatened future injury is 'certainly impending' and not merely speculative. Plaintiffs cannot manufacture standing by incurring costs in response to a speculative fear of future harm that is not certainly impending.
Facts:
- Respondents are a group of U.S. attorneys, journalists, and human rights organizations.
- Their professional work requires them to engage in sensitive and often privileged electronic communications with individuals located outside the United States.
- Respondents believe their foreign contacts—including former detainees, activists, and individuals associated with terrorist organizations—are likely targets of surveillance under Section 702 of the Foreign Intelligence Surveillance Act (FISA).
- Due to this belief, respondents allege they are unable to communicate freely and confidentially with their foreign contacts.
- Respondents have undertaken costly and burdensome measures, such as traveling internationally for in-person meetings, to avoid potential surveillance and protect the confidentiality of their communications.
Procedural Posture:
- Respondents filed suit in the U.S. District Court for the Southern District of New York seeking a declaration that § 1881a of FISA is unconstitutional and an injunction against its use.
- The District Court granted summary judgment to the government (petitioners), holding that respondents lacked Article III standing.
- Respondents appealed to the U.S. Court of Appeals for the Second Circuit.
- A panel of the Second Circuit reversed the trial court, finding that the respondents had standing based on both a reasonable fear of future harm and the present costs incurred to avoid that harm.
- The Second Circuit denied the government's petition for rehearing en banc.
- The U.S. Supreme Court granted the government's petition for a writ of certiorari.
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Issue:
Do attorneys, journalists, and human rights organizations have Article III standing to challenge the constitutionality of a government surveillance statute based on a reasonable likelihood that their future communications will be intercepted or based on present costs incurred to avoid such potential interception?
Opinions:
Majority - Justice Alito
No. Respondents lack Article III standing because their asserted injuries are too speculative. A claimed future injury must be 'certainly impending,' and respondents' fear of interception rests on a highly attenuated chain of possibilities: that the government will target their foreign contacts, choose to use § 702 authority, receive FISC approval, successfully intercept the communications, and that respondents will be a party to those specific communications. Furthermore, respondents cannot manufacture standing by inflicting harm on themselves—such as incurring travel costs—based on fears of a hypothetical future harm that is not certainly impending. Allegations of a 'subjective chill' are an inadequate substitute for a specific, present, objective harm or a threat of specific future harm, as established in Laird v. Tatum.
Dissenting - Justice Breyer
Yes. The respondents have standing because the threatened harm is not speculative but is a 'very high likelihood.' Given the nature of respondents' work and clients, and the government's strong motive and capacity to conduct surveillance under § 702, it is commonsense to conclude that their communications will be intercepted. The 'certainly impending' standard does not require absolute certainty but rather a 'reasonable probability,' a threshold met here. Moreover, like the plaintiffs in Monsanto, the respondents are suffering a present injury by taking costly and reasonable steps to mitigate the highly probable future harm of interception, which independently satisfies the requirement for standing.
Analysis:
This decision significantly raises the barrier for pre-enforcement challenges to secret government surveillance programs. By interpreting the 'imminence' requirement for standing with extreme strictness, the Court makes it nearly impossible for individuals who are not direct targets of surveillance (and aware of it) to bring a constitutional challenge. The ruling reinforces a strong judicial deference to the executive branch in matters of national security and foreign intelligence, effectively insulating such programs from judicial review unless the government chooses to use the collected information in a criminal prosecution. This creates a potential 'catch-22' where the secrecy of the program prevents anyone from proving the injury required to challenge its legality.
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