Clapper v. Amnesty Int'l USA

Decision Date26 February 2013
Docket NumberNo. 11–1025.,11–1025.
Citation568 U.S. 398,185 L.Ed.2d 264,133 S.Ct. 1138
Parties James R. CLAPPER, Jr., Director of National Intelligence, et al., Petitioners v. AMNESTY INTERNATIONAL USA et al.
CourtU.S. Supreme Court

Donald B. Verrilli, Jr., Solicitor General, for Petitioners.

Jameel Jaffer, New York, NY, for Respondents.

Charles S. Sims, Matthew J. Morris, Proskauer Rose LLP, New York, NY, Jameel Jaffer, Counsel of Record, Steven R. Shapiro, Alexander A. Abdo, Mitra Ebadolahi, American Civil Liberties Union Foundation, New York, NY, Arthur N. Eisenburg, Christopher T. Dunn, New York Civil Liberties Union Foundation, New York, NY, for Respondents.

Robert S. Litt, General Counsel, Tricia S. Wellman, Deputy General Counsel, Bradley A. Brooker, Associate General Counsel, Office of the Director of National Intelligence, Washington, DC, Rajesh De, General Counsel, Ariane E. Cerlenko, Associate General Counsel, National Security Agency, Ft. Meade, MD, Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Stuart F. Delery, Acting Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Anthony A. Yang, Assistant to the Solicitor General, Douglas N. Letter, Thomas M. Bondy, Daniel J. Lenerz, Henry C. Whitaker, Attorneys, Department of Justice, Washington, DC, for Petitioners.

Justice ALITO delivered the opinion of the Court.

Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1881a (2006 ed., Supp. V), allows the 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"1 and are reasonably believed to be located outside the United States. Before doing so, the Attorney General and the Director of National Intelligence normally must obtain the Foreign Intelligence Surveillance Court's approval. Respondents are United States persons whose work, they allege, requires them to engage in sensitive international communications with individuals who they believe are likely targets of surveillance under § 1881a. Respondents seek a declaration that § 1881a is unconstitutional, as well as an injunction against § 1881a -authorized surveillance. The question before us is whether respondents have Article III standing to seek this prospective relief.

Respondents 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. But respondents' theory of future injury is too speculative to satisfy the well-established requirement that threatened injury must be "certainly impending." E.g., Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). And even if respondents could demonstrate that the threatened injury is certainly impending, they still would not be able to establish that this injury is fairly traceable to § 1881a. As an alternative argument, respondents contend that they are suffering present injury because the risk of § 1881a -authorized surveillance already has forced them to take costly and burdensome measures to protect the confidentiality of their international communications. But respondents cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending. We therefore hold that respondents lack Article III standing.

I
A

In 1978, after years of debate, Congress enacted the Foreign Intelligence Surveillance Act (FISA) to authorize and regulate certain governmental electronic surveillance of communications for foreign intelligence purposes. See 92 Stat. 1783, 50 U.S.C. § 1801 et seq. ; 1 D. Kris & J. Wilson, National Security Investigations & Prosecutions §§ 3.1, 3.7 (2d ed. 2012) (hereinafter Kris & Wilson). In enacting FISA, Congress legislated against the backdrop of our decision in United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) ( Keith ), in which we explained that the standards and procedures that law enforcement officials must follow when conducting "surveillance of ‘ordinary crime’ " might not be required in the context of surveillance conducted for domestic national-security purposes. Id., at 322–323, 92 S.Ct. 2125. Although the Keith opinion expressly disclaimed any ruling "on the scope of the President's surveillance power with respect to the activities of foreign powers," id., at 308, 92 S.Ct. 2125, it implicitly suggested that a special framework for foreign intelligence surveillance might be constitutionally permissible, see id., at 322–323, 92 S.Ct. 2125.

In constructing such a framework for foreign intelligence surveillance, Congress created two specialized courts. In FISA, Congress authorized judges of the Foreign Intelligence Surveillance Court (FISC) to approve electronic surveillance for foreign intelligence purposes if there is probable cause to believe that "the target of the electronic surveillance is a foreign power or an agent of a foreign power," and that each of the specific " facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power." § 105(a)(3), 92 Stat. 1790; see § 105(b)(1)(A), (b)(1)(B), ibid. ; 1 Kris & Wilson § 7:2, at 194–195; id., § 16:2, at 528–529. Additionally, Congress vested the Foreign Intelligence Surveillance Court of Review with jurisdiction to review any denials by the FISC of applications for electronic surveillance. § 103(b), 92 Stat. 1788; 1 Kris & Wilson § 5:7, at 151–153.

In the wake of the September 11th attacks, President George W. Bush authorized the National Security Agency (NSA) to conduct warrantless wiretapping of telephone and e-mail communications where one party to the communication was located outside the United States and a participant in "the call was reasonably believed to be a member or agent of al Qaeda or an affiliated terrorist organization," App. to Pet. for Cert. 403a. See id., at 263a–265a, 268a, 273a–279a, 292a–293a; American Civil Liberties Union v. NSA, 493 F.3d 644, 648 (C.A.6 2007) (ACLU ) (opinion of Batchelder, J.). In January 2007, the FISC issued orders authorizing the Government to target international communications into or out of the United States where there was probable cause to believe that one participant to the communication was a member or agent of al Qaeda or an associated terrorist organization. App. to Pet. for Cert. 312a, 398a, 405a. These FISC orders subjected any electronic surveillance that was then occurring under the NSA's program to the approval of the FISC. Id., at 405a; see id., at 312a, 404a. After a FISC Judge subsequently narrowed the FISC's authorization of such surveillance, however, the Executive asked Congress to amend FISA so that it would provide the intelligence community with additional authority to meet the challenges of modern technology and international terrorism. Id., at 315a–318a, 331a–333a, 398a; see id., at 262a, 277a–279a, 287a.

When Congress enacted the FISA Amendments Act of 2008 (FISA Amendments Act), 122 Stat. 2436, it left much of FISA intact, but it "established a new and independent source of intelligence collection authority, beyond that granted in traditional FISA." 1 Kris & Wilson § 9:11, at 349–350. As relevant here, § 702 of FISA, 50 U.S.C. § 1881a (2006 ed., Supp. V), which was enacted as part of the FISA Amendments Act, supplements pre-existing FISA authority by creating a new framework under which the Government may seek the FISC's authorization of certain foreign intelligence surveillance targeting the communications of non-U.S. persons located abroad. Unlike traditional FISA surveillance, § 1881a does not require the Government to demonstrate probable cause that the target of the electronic 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 location of each of the particular facilities or places at which the electronic surveillance will occur. Compare § 1805(a)(2)(B), (c)(1) (2006 ed. and Supp. V), with § 1881a(d)(1), (g)(4), (i)(3)(A) ; 638 F.3d, at 125–126; 1 Kris & Wilson § 16:16, at 585.2

The present case involves a constitutional challenge to § 1881a. Surveillance under § 1881a is subject to statutory conditions, judicial authorization, congressional supervision, and compliance with the Fourth Amendment. Section 1881a provides that, upon the issuance of an order from the Foreign Intelligence Surveillance Court, "the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year ..., the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information." § 1881a(a). 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) ; see also § 1801(i). Additionally, acquisitions under § 1881a must comport with the Fourth Amendment. § 1881a(b)(5). Moreover, surveillance under § 1881a is subject to congressional oversight and several types of Executive Branch review. See § 1881a(f)(2), (l ) ; Amnesty Int'l USA v. McConnell, 646 F.Supp.2d 633, 640–641 (S.D.N.Y.2009).

Section 1881a mandates that the Government obtain the Foreign Intelligence Surveillance Court's approval of "targeting" procedures, "minimization" procedures, and a governmental certification regarding proposed surveillance. § 1881a(a), (c)(1), (i)(2), (i)(3). Among other things, the Government's certification must attest that (1) procedures are in place "that have been approved,...

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