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Civil Procedure — standing

By: WISCONSIN LAW JOURNAL STAFF//February 26, 2013//

Civil Procedure — standing

By: WISCONSIN LAW JOURNAL STAFF//February 26, 2013//

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U.S. Supreme Court

Civil

Civil Procedure — standing

The parties lack standing to challenge the 2008 Amendments to the Foreign Intelligence Surveillance Act, which permits 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” and are reasonably believed to be located outside the United States.

Respondents assert that they have suffered injury in fact that is fairly traceable to §1881a because there is an objectively reasonable likelihood that their communications with their foreign contacts will be intercepted under §1881a at some point. This argument fails. Initially, the Second Circuit’s “objectively reasonable likelihood” standard is inconsistent with this Court’s “threatened injury” requirement. Respondents’ standing theory also rests on a speculative chain of possibilities that does not establish that their potential injury is certainly impending or is fairly traceable to §1881a. First, it is highly speculative whether the Government will imminently target communications to which respondents are parties. Since respondents, as U. S. persons, cannot be targeted under §1881a, their theory necessarily rests on their assertion that their foreign contacts will be targeted. Yet they have no actual knowledge of the Government’s §1881a targeting practices. Second, even if respondents could demonstrate that the targeting of their foreign contacts is imminent, they can only speculate as to whether the Government will seek to use §1881aauthorized surveillance instead of one of the Government’s numerous other surveillance methods, which are not challenged here. Third, even if respondents could show that the Government will seek FISC authorization to target respondents’ foreign contacts under §1881a, they can only speculate as to whether the FISC will authorize the surveillance. This Court is reluctant to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment. See, e.g., Whitmore, supra, at 159–160. Fourth, even if the Government were to obtain the FISC’s approval to target respondents’ foreign contacts under §1881a, it is unclear whether the Government would succeed in acquiring those contacts’ communications. And fifth, even if the Government were to target respondents’ foreign contacts, respondents can only speculate as to whether their own communications with those contacts would be incidentally acquired.  638 F. 3d 118, reversed and remanded.

11-1025 Clapper v. Amnesty International, USA

Alito, J.; Breyer, J., dissenting.

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