26 February 2013

Law in Plain English: Clapper v. Amnesty International USA

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Clapper v. Amnesty International USA

The Foreign Intelligence Surveillance Act (FISA) authorizes the Attorney General and the Director of National Intelligence to intercept certain foreign communications--generally non-US persons and persons believed to be located outside of the United States. Amnesty International USA and other human rights organizations alleged that they communicated with people who are likely to be targets of FISA, and as a result, their communications are likely to be surveilled. The question here was whether these groups had standing to challenge FISA because they had offered no evidence that their communications had been intercepted. The Supreme Court ruled (in a 5-4 decision) that these groups did show that their injury was “concrete, particularized, and actual or imminent." Allegations that such injuries might occur in the future is not enough. As a result, the Court did not rule on the constitutional merits of FISA. The practical impact of this decision is that future claims will have to identify some evidence that their communications were intercepted. Because most or all of this information is classified, it seems unlikely that anyone (aside for some  unforeseeable circumstances) will be able to adequately challenge the constitutionality of FISA.
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