Clapper v. Amnesty International
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''Clapper v. Amnesty International USA'', 568 U.S. 398 (2013), was a
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
case in which the Court held that
Amnesty International USA Amnesty International USA (AIUSA) is one of many country sections that make up Amnesty International worldwide. Amnesty International is an organization of more than 7 million supporters, activists and volunteers in over 150 countries, with compl ...
and others lacked
standing Standing, also referred to as orthostasis, is a position in which the body is held in an ''erect'' ("orthostatic") position and supported only by the feet. Although seemingly static, the body rocks slightly back and forth from the ankle in the s ...
to challenge section 702 of the
Foreign Intelligence Surveillance Act of 1978 The Foreign Intelligence Surveillance Act of 1978 ("FISA" , ) is a United States federal law that establishes procedures for the physical and electronic surveillance and the collection of "foreign intelligence information" between "foreign pow ...
(), as amended by the
Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 The FISA Amendments Act of 2008, also called the FAA and Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, is an Act of Congress that amended the Foreign Intelligence Surveillance Act. It has been used as the legal basis ...
.


Background

''Clapper'' was a challenge to the FISA Amendments Act of 2008, which empowers the
Foreign Intelligence Surveillance Court The United States Foreign Intelligence Surveillance Court (FISC), also called the FISA Court, is a U.S. federal court established under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants ag ...
to authorize
surveillance Surveillance is the monitoring of behavior, many activities, or information for the purpose of information gathering, influencing, managing or directing. This can include observation from a distance by means of electronic equipment, such as c ...
without a showing of
probable cause In United States criminal law, probable cause is the standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or the issuing of a search warrant. There is no universally accepted definition o ...
that the target of the surveillance is an agent of a foreign power. The government must demonstrate only that the surveillance targets “persons reasonably believed to be located outside the United States” and seeks “foreign intelligence information.” The plaintiffs alleged that they sustained greater inconvenience and higher costs because of the need to conduct secure communications with parties overseas whom the US government had probably targeted for surveillance. The challenge was brought against
James Clapper James Robert Clapper Jr. (born March 14, 1941) is a retired lieutenant general in the United States Air Force and former Director of National Intelligence. Clapper has held several key positions within the United States Intelligence Community. H ...
,
Director of National Intelligence The director of national intelligence (DNI) is a senior, cabinet-level United States government official, required by the Intelligence Reform and Terrorism Prevention Act of 2004 to serve as executive head of the United States Intelligence Commu ...
.


Decision

The Court dismissed the case by following the US government's argument that "the claims of the challenges that they were likely to be targets of surveillance were based too much on speculation and on a predicted chain of events that might never occur, so they could not satisfy the constitutional requirement for being allowed to sue." "Respondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending," Justice Samuel Alito wrote in the majority opinion. Justice Breyer, in dissent, said that the case should have proceeded to trial. Of the spying, he wrote: “Indeed it is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen.”


Reactions

According to
Jameel Jaffer Jameel Jaffer is a human rights and civil liberties attorney and the inaugural director of the Knight First Amendment Institute at Columbia University, which was created to defend the freedoms of speech and the press in the digital age. The Ins ...
, deputy legal director of the
American Civil Liberties Union The American Civil Liberties Union (ACLU) is a nonprofit organization founded in 1920 "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States". T ...
(ACLU), which argued the case on behalf of the plaintiffs before the Supreme Court, the challenged amendments made in 2008 to the Foreign Intelligence Surveillance Act essentially allow the
National Security Agency The National Security Agency (NSA) is a national-level intelligence agency of the United States Department of Defense, under the authority of the Director of National Intelligence (DNI). The NSA is responsible for global monitoring, collecti ...
(NSA) "to engage in dragnet surveillance of Americans’ international communications," even of those "who might not be suspected at all of having done anything wrong" and so "it's a very broad surveillance statute" and "arguably broader than any surveillance statute that Congress has sanctioned in the past." According to him, the Supreme Court, by requiring the plaintiffs to show that they have been monitored under the law, has essentially created a barrier to judicial review by preventing anyone from ever challenging that kind of statute in court as indeed, nobody can show that they have been monitored under the law since the government does not disclose its targets. After the decision in favor of the government, several legal experts stated, "''Clapper'' also hints at a rocky reception for the challenge to the NDAA in '' Hedges''."


Aftermath

Before the process, Solicitor General Donald B. Verrilli Jr. had denied that ruling in the US government's favor would immunize the surveillance program from constitutional challenges. “That contention is misplaced,” Verrilli wrote in a brief. “Others may be able to establish standing even if respondents cannot. As respondents recognize, the government must provide advance notice of its intent to use information obtained or derived from” the surveillance authorized by the 2008 law “against a person in judicial or administrative proceedings and that person may challenge the underlying surveillance.” Specifically, Verrilli unequivocally assured the Supreme Court in its brief, that criminal defendants would receive notice of FAA surveillance and an opportunity to challenge the statute:
If the government intends to use or disclose any information obtained or derived from its acquisition of a person's communications under he FAAin judicial or administrative proceedings against that person, it must provide advance notice of its intent to the tribunal and the person, whether or not the person was targeted for surveillance under he FAA
The USCC then took Verrilli's assurance and ruled in accordance with the FAA §1881a according to which criminal defendants who are prosecuted using evidence obtained or derived from FAA surveillance are entitled to notice:See 50 U.S.C. §§ 1806(c), 188le(a)
If the Government intends to use or disclose information obtained or derived from a §1881a acquisition in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition.
The opposite of what Verrilli told the Supreme Court has happened in actual criminal prosecutions. Federal prosecutors, apparently unaware of his representations, have refused to make the promised disclosures. In a prosecution in Federal District Court in Fort Lauderdale, Florida, against two brothers accused of plotting to bomb targets in New York, the government has said that it plans to use information gathered under the Foreign Intelligence Surveillance Act of 1978, which authorizes individual warrants. However, prosecutors have refused to say whether the government obtained those individual warrants based on information derived from the 2008 law, which allows programmatic surveillance. Prosecutors in Chicago have taken the same approach in a prosecution of teenager accused of plotting to blow up a bar. While both the original Foreign Intelligence Surveillance Act and the FISA Amendments Act require the government to notify defendants when evidence being used against them is derived from surveillance authorized by the corresponding law, there is a crucial difference between both laws with respect to warrants. A traditional FISA court order pursuant to the original Act requires the government to go to a FISA judge and show probable cause that the target is an agent of a foreign power. The expanded surveillance program authorized in 2008 allows the FAA, however, targets non-Americans persons “reasonably believed” to be located outside the United States, and it does not require that the government to obtain individual warrants before it intercepts communications. Moreover, the purpose of the collection is “foreign intelligence,” a broad category that may include everything from information on terrorism to nuclear proliferation to European journalist writing on human rights abuses or an African businessman talking about global financial risk. In essence, the law authorized the government to wiretap Americans’ e-mails and phone calls without an individual court order and on domestic soil if the surveillance is “targeted” at a foreigner abroad. Judge John O'Sullivan explained it this way in the Florida case:
Before passage of the FAA in 2008, FISA generally foreclosed the government from engaging in "electronic surveillance" without first obtaining an individualized and particularized order from the Foreign Intelligence Surveillance Court ("FISC"). To obtain an order from the FISC, the government had to satisfy certain requirements including that a "significant purpose" of the surveillance was to obtain "foreign intelligence information. 50 U.S.C. § 1805(a)(2)(B).
When FISA was amended in 2008, the FAA provided legislative authority for the warrantless surveillance of U.S. citizens' and residents' communications. Although the FAA left FISA intact regarding communications known to be purely domestic, the FAA expanded FISA by allowing the mass acquisition of U.S. citizens' and residents' international communications without individualized judicial oversight or supervision. See Clapper v. Amnesty Intl USA, 133 S. Ct. 1138, 1143-44 (2013). Under the FAA, the Attorney General and Director of National Intelligence ("DNI") may "authorize jointly, for a period of up to one year... the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information." 50 U.S.C. § 1881(a).
Verrilli had told the Supreme Court justices that somebody would have legal standing to trigger review of the program because prosecutors would notify people facing evidence derived from surveillance under the 2008 FISA Amendments law. However, it turned out that Verrilli's assurances clashed with the actual practices of national security prosecutors, who had not been alerting such defendants that evidence in their cases had stemmed from wiretapping their conversations without a warrant. For Verrilli, that led to the question of whether any persuasive legal basis exists for failing to clearly notify defendants that they faced evidence linked to the 2008 warrantless surveillance law, which prevented them from knowing that they had an opportunity to argue that it derived from an unconstitutional search. After internal deliberations in which Verrilli argued that there was no legal basis to conceal from defendants that evidence derived from legally-untested surveillance, which prevented them from knowing that they had an opportunity to challenge it, the
US Justice Department The United States Department of Justice (DOJ), also known as the Justice Department, is a United States federal executive departments, federal executive department of the United States government tasked with the enforcement of federal law and a ...
concluded “that withholding disclosure from defendants could not be justified legally.” As a consequence, the Justice Department, as of October 2013, was setting up a potential Supreme Court test of whether it is constitutional by notifying criminal defendants for the first time that evidence against them had been derived from eavesdropping that had been authorized under the FISA Amendments Act of 2008. The first defendant who received notice that he had been monitored under the FISA Amendments Act of 2008 (FAA) was Jamshid Muhtorov on October 25, 2013. According to the ''New York Times'', the move is expected to set up a Supreme Court test of whether eavesdropping from a warrantless wiretap is constitutional. The American Civil Liberties Union praised Verrilli for providing criminal defendants who are prosecuted using evidence obtained or derived from FAA surveillance and are entitled to notice that this evidence was acquired under the FISA Amendments Act with such statutorily-required notice that is required under the FISA Amendments Act. That gives defendants the opportunity to move to suppress FAA-derived evidence and to right to challenge the warrantless wiretapping law and trial courts the opportunity to adjudicate the FAA's constitutionality. Despite its praise, the ACLU urged Verrilli "should now submit a letter-brief alerting the upremeCourt to the significant factual error in the government's submissions. His letter should explain what the NSD's ational Security Division of the U.S. Justice Departmentnotice policy was when ''Clapper'' was before the courts; on what basis the NSD came to the conclusion that the policy was justified; how it came to pass that the government misrepresented the NSD's policy; and what the NSD's notice policy is now."


See also

* Litigation over global surveillance * ''
ACLU v. Clapper ''American Civil Liberties Union v. Clapper'', 785 F.3d 787 (2nd Cir., 2015), was a lawsuit by the American Civil Liberties Union (ACLU) and its affiliate, the New York Civil Liberties Union, against the United States federal government as repr ...
'' * ''
Amnesty v. Blair ''Clapper v. Amnesty International USA'', 568 U.S. 398 (2013), was a Supreme Court of the United States, United States Supreme Court case in which the Court held that Amnesty International USA and others lacked Standing (law), standing to challen ...
'' * ''
Laird v. Tatum ''Laird v. Tatum'', 408 U.S. 1 (1972), was a case in which the United States Supreme Court dismissed for lack of ripeness a claim in which the plaintiff accused the U.S. Army of alleged unlawful "surveillance of lawful citizen political activity." ...
'' *
COINTELPRO COINTELPRO ( syllabic abbreviation derived from Counter Intelligence Program; 1956–1971) was a series of covert and illegal projects actively conducted by the United States Federal Bureau of Investigation (FBI) aimed at surveilling, infiltrati ...
*
PRISM (surveillance program) Prism usually refers to: * Prism (optics), a transparent optical component with flat surfaces that refract light * Prism (geometry), a kind of polyhedron Prism may also refer to: Science and mathematics * Prism (geology), a type of sedimentary ...


References


Further reading

* *


External links

*
Coverage on SCOTUSblog
{{USArticleIII 2013 in United States case law American Civil Liberties Union litigation Amnesty International Mass surveillance litigation United States Constitution Article Three case law United States privacy case law United States standing case law United States Supreme Court cases United States Supreme Court cases of the Roberts Court