Amnesty Int'l U.S. v. Clapper, Docket No. 09–4112–cv.

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtBefore: CALABRESI, SACK, and LYNCH, Circuit Judges.
Citation638 F.3d 118
Decision Date21 March 2011
Docket NumberDocket No. 09–4112–cv.
PartiesAMNESTY INTERNATIONAL USA, Global Fund for Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation Magazine, PEN American Center, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Plaintiffs–Appellants,v.James R. CLAPPER, Jr., in his official capacity as Director of National Intelligence,* Keith B. Alexander, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service, Eric H. Holder, Jr., in his official capacity as Attorney General of the United States, Defendants–Appellees.

638 F.3d 118
39 Media L. Rep. 1481

AMNESTY INTERNATIONAL USA, Global Fund for Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation Magazine, PEN American Center, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, David Nevin, Scott McKay, Sylvia Royce, Plaintiffs–Appellants,
v.
James R. CLAPPER, Jr., in his official capacity as Director of National Intelligence,* Keith B. Alexander, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service, Eric H. Holder, Jr., in his official capacity as Attorney General of the United States, Defendants–Appellees.

Docket No. 09–4112–cv.

United States Court of Appeals, Second Circuit.

Argued: April 16, 2010.Decided: March 21, 2011.


[638 F.3d 120]

Jameel Jaffer, American Civil Liberties Union Foundation, New York, N.Y. (Melissa Goodman and Laurence M. Schwartztol, American Civil Liberties Union Foundation, New York, NY; Christopher T. Dunn and Arthur N. Eisenburg, New York Civil Liberties Union Foundation, New York, NY; Charles S. Sims, Theodore K. Cheng, Matthew J. Morris, Proskauer Rose LLP, New York, NY, on the brief), for Plaintiff–Appellant.Douglas N. Letter, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C. (Tony West, Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C.; Daniel J. Lenerz, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C.; Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, on the brief), for Defendants–Appellees.Barbara Moses, Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, P.C., New

[638 F.3d 121]

York, NY; Emily Berman and Elizabeth Goitein, The Brennan Center for Justice, New York, NY; Sharon Bradford Franklin, The Constitution Project, Washington, D.C., for Amici Curiae The Brennan Center for Justice, The Center for Democracy & Technology, The Constitution Project, The Electronic Frontier Foundation, and The Rutherford Institute in support of Plaintiffs–Appellants.Lucy A. Dalglish and Gregg P. Leslie, Counsel for The Reporters Committee for Freedom of the Press, Arlington, VA, for Amicus Curiae The Reporters Committee for Freedom of the Press in support of Plaintiffs–Appellants.Duane L. Loft, Cravath, Swaine & Moore LLP, New York, NY; Peter T. Barbur, The New York City Bar Association, New York, NY, for Amicus Curiae The New York City Bar Association in support of Plaintiffs–Appellants.Robert A. Atkins and William J. Taylor, Jr., Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, for Amici Curiae Law Professors Michelle Adams, Benjamin N. Cardozo School of Law, Yeshiva University; Baher Azmy, Seton Hall University School of Law; Fletcher N. Baldwin, Jr., Levin College of Law, University of Florida; Erwin Chemerinsky, University of California, Irvine, School of Law; Norman Dorsen, New York University; David M. Driesen, Syracuse University College of Law; Eric M. Freedman, Hofstra Law School; Lynne Henderson, William S. Boyd School of Law, University of Nevada–Las Vegas; Seth F. Kreimer, University of Pennsylvania Law School; Alexander A. Reinert, Benjamin N. Cardozo School of Law, Yeshiva University; David Rudovsky, University of Pennsylvania Law School; Daniel J. Solove, George Washington University Law School in support of Plaintiffs–Appellants.Before: CALABRESI, SACK, and LYNCH, Circuit Judges.GERARD E. LYNCH, Circuit Judge:

Attorneys, journalists, and labor, legal, media, and human rights organizations brought this action facially challenging the constitutionality of Section 702 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”), which was added to FISA by Section 101(a)(2) of the FISA Amendments Act of 2008 (the “FAA”), and codified at 50 U.S.C. § 1881a. Section 702 creates new procedures for authorizing government electronic surveillance targeting non-United States persons outside the United States for purposes of collecting foreign intelligence. The plaintiffs complain that the procedures violate the Fourth Amendment, the First Amendment, Article III of the Constitution, and the principle of separation of powers because they “allow[ ] the executive branch sweeping and virtually unregulated authority to monitor the international communications ... of law-abiding U.S. citizens and residents.”

The merits of the plaintiffs' claims are not before us. The only issue presented by this appeal is whether the plaintiffs are legally in a position to assert these claims in a federal court, not whether the claims are to any degree valid. Their merit is an issue for another court on another day. The district court (Koeltl, J.) granted the government summary judgment because it found that the plaintiffs lacked standing. On appeal, the plaintiffs argue that they have standing because the FAA's new procedures 1 cause them to fear that their communications will be monitored, and thus force them to undertake costly and

[638 F.3d 122]

burdensome measures to protect the confidentiality of international communications necessary to carrying out their jobs. Because standing may be based on a reasonable fear of future injury and costs incurred to avoid that injury, and the plaintiffs have established that they have a reasonable fear of injury and have incurred costs to avoid it, we agree that they have standing. We therefore reverse the district court's judgment.

BACKGROUND
I. Statutory Scheme at Issue

In 1978, Congress enacted FISA to establish procedures under which federal officials could obtain authorization to conduct electronic surveillance for foreign intelligence purposes, including surveillance of communications between persons located within the United States and surveillance of communications between persons located within the United States and persons located outside the United States.2 See 50 U.S.C. §§ 1801(f), 1804(a)(6)(A). The 2008 FAA amends FISA. It leaves much of the preexisting surveillance authorization procedure intact, but it creates new procedures for the authorization of foreign intelligence electronic surveillance targeting non-United States persons located outside the United States.3 See id. § 1881a; see also 154 Cong. Rec. S227, 228 (daily ed. Jan. 24, 2008) (statement of Sen. Rockefeller) (“[W]e wanted to ensure that activities authorized by this bill are only directed at persons outside the United States.... For individuals inside the United States, the existing procedures under FISA continue to apply.”). The plaintiffs complain that the new procedures unlawfully permit broader collection of intelligence with less judicial oversight.

A. Surveillance Authorization Procedures Prior to the FAA

FISA established procedures requiring federal officials to obtain authorization to

[638 F.3d 123]

conduct electronic surveillance for foreign intelligence purposes. It created the Foreign Intelligence Surveillance Court (“FISC”), to which the government had to apply for authorization to conduct foreign intelligence surveillance. See 50 U.S.C. §§ 1803, 1804.

To obtain authorization, a federal officer had to submit an application, approved by the Attorney General, that included: the identity of the officer making the application; the identity, if known, or a description of, the individual to be monitored by the surveillance (“the target”); the bases for believing both that the target was a foreign power or an agent of a foreign power, and that a foreign power or an agent of a foreign power was using or was about to use each of the facilities at which the surveillance was directed; proposed minimization procedures; the nature of the information sought and the type of communications or activities to be surveilled; a certification that a significant purpose of the surveillance was to obtain foreign intelligence information, and that the information could not reasonably be obtained by normal investigative techniques; the means by which the surveillance would be effected; a description of any previous surveillance applications; and the period during which the surveillance was to be maintained. Id. § 1804(a)(1)-(9).

Before approving an application, a FISC judge 4 had to find that: the application met the above criteria; there was probable cause to believe both that the target was a foreign power or an agent of a foreign power and that each of the facilities or places at which the electronic surveillance was directed was being used, or was about to be used, by a foreign power or an agent of a foreign power; and the government's proposed minimization procedures met the standards defined in § 1801(h).5 Id. § 1805(a).

A FISC judge who approved an application was required to enter an individualized ex parte order that specified (among other things): the identity, if known, or a description of the target; the nature and location of the places to be monitored; the type of information sought to be acquired; the means of surveillance, and the time period for which surveillance was approved. Id. § 1805(c)(1). The order also had to direct the government to follow the

[638 F.3d 124]

approved minimization procedures. Id. § 1805(c)(2)(A). During the authorized surveillance period, the FISC could monitor compliance with these minimization procedures “by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.” Id. § 1805(d)(3).

B. Surveillance Authorization Procedures After the FAA

The FAA leaves much of the FISA framework intact, but the new Section 702 creates new procedures for the authorization of foreign intelligence surveillance targeting non-United States persons located outside the United States.

The FAA, in contrast to the preexisting FISA scheme, does not require the government to submit an individualized application to the FISC identifying the particular...

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33 practice notes
  • Hedges v. Obama, Docket Nos. 12–3176 (Lead), 12–3644(Con).
    • United States
    • U.S. Court of Appeals — Second Circuit
    • July 17, 2013
    ...this appeal—but instead was bound by our prior decision in that case, which the Supreme Court reversed. See Amnesty Int'l USA v. Clapper, 638 F.3d 118 (2d Cir.2011), rev'd,––– U.S. ––––, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013). 145.Id. 146.Id. at 1150 n. 5. 147.Id. 148.Id. (citing Babbitt v.......
  • Amnesty Int'l USA v. Clapper, No. 09–4112–cv.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 21, 2011
    ...the panel opinion speaks for itself; answers to nearly all of the dissents' points can be found there. See Amnesty Int'l USA v. Clapper, 638 F.3d 118 (2d Cir.2011). Nevertheless, I take this opportunity to respond directly to a few points.1 As an initial matter, I agree with the dissenters ......
  • Clapper v. Amnesty Int'l USA, No. 11–1025.
    • United States
    • United States Supreme Court
    • February 26, 2013
    ...surveillance is a foreign power or agent of a foreign power. Compare § 1805(a)(2)(A), (a)(2)(B), with § 1881a(d)(1), (i)(3)(A) ; 638 F.3d 118, 126 (C.A.2 2011) ; 1 Kris & Wilson § 16:16, at 584. And, unlike traditional FISA, § 1881a does not require the Government to specify the nature and ......
  • Clapper v. Amnesty Int'l United States, No. 11–1025.
    • United States
    • United States Supreme Court
    • February 26, 2013
    ...489, 102 S.Ct. 752, 70 L.Ed.2d 700. Second, the holding in this case by no means insulates § 1881a from judicial review. Pp. 1153 – 1155. 638 F.3d 118, reversed and remanded. ALITO, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, KENNEDY, and THOMAS, JJ., joined.......
  • Request a trial to view additional results
33 cases
  • Hedges v. Obama, Docket Nos. 12–3176 (Lead), 12–3644(Con).
    • United States
    • U.S. Court of Appeals — Second Circuit
    • July 17, 2013
    ...this appeal—but instead was bound by our prior decision in that case, which the Supreme Court reversed. See Amnesty Int'l USA v. Clapper, 638 F.3d 118 (2d Cir.2011), rev'd,––– U.S. ––––, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013). 145.Id. 146.Id. at 1150 n. 5. 147.Id. 148.Id. (citing Babbitt v.......
  • Amnesty Int'l USA v. Clapper, No. 09–4112–cv.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 21, 2011
    ...the panel opinion speaks for itself; answers to nearly all of the dissents' points can be found there. See Amnesty Int'l USA v. Clapper, 638 F.3d 118 (2d Cir.2011). Nevertheless, I take this opportunity to respond directly to a few points.1 As an initial matter, I agree with the dissenters ......
  • Clapper v. Amnesty Int'l USA, No. 11–1025.
    • United States
    • United States Supreme Court
    • February 26, 2013
    ...surveillance is a foreign power or agent of a foreign power. Compare § 1805(a)(2)(A), (a)(2)(B), with § 1881a(d)(1), (i)(3)(A) ; 638 F.3d 118, 126 (C.A.2 2011) ; 1 Kris & Wilson § 16:16, at 584. And, unlike traditional FISA, § 1881a does not require the Government to specify the nature and ......
  • Clapper v. Amnesty Int'l United States, No. 11–1025.
    • United States
    • United States Supreme Court
    • February 26, 2013
    ...489, 102 S.Ct. 752, 70 L.Ed.2d 700. Second, the holding in this case by no means insulates § 1881a from judicial review. Pp. 1153 – 1155. 638 F.3d 118, reversed and remanded. ALITO, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, KENNEDY, and THOMAS, JJ., joined.......
  • Request a trial to view additional results

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