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Friday afternoon, the Obama Administration filed a cert. petition in Clapper v. Amnesty International, the constitutional challenge to 50 U.S.C. § 1881a (added by the FISA Amendments Act of 2008), which authorizes "the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information" (and which, in the process, dramatically expands the potential scope of individual surveillance orders and eliminates--or at the very least waters down--the specific probable cause showing and the judicial review thereof that FISA previously required). Although Section 1881a includes a series of exceptions designed to forbid the use of such authority for the purpose of targeting U.S. citizens anywhere (or non-citizens within the United States), the claim at the heart of this suit is that the provisions are sufficiently sweeping so as to likely authorize surveillance of the plaintiffs (a group that includes lawyers, reporters, and NGOs heavily involved in representing overseas clients or covering overseas stories) notwithstanding the statutory carve-outs. The Second Circuit held that these allegations were sufficient to satisfy Article III standing requirements, at least at summary judgment. The Court of Appeals then divided, 6-6, as to whether to rehear that decision en banc (with a series of fairly sharply-worded dissents). There is a lot to say about the cert. petition, and I don't have the time to cover it extensively here. Instead, below the fold, I offer three preliminary observations: First, my own uninformed intuition is that it is likely that cert. will be granted. Although much has been written about the Supreme Court's unwillingness to jump into civil suits challenging post-September 11 counterterrorism policies, the three non-detention-related exceptions have been in the three cases in which the federal government sought cert.--Iqbal, Humanitarian Law Project, and al-Kidd. To be sure, a dataset of three is hardly convincing, but it seems unlikely that the Justices will ignore the brief's suggestion that further litigation "threatens to disrupt important Executive Branch activities protecting the national security," especially when the brief is signed by the General Counsel to the DNI, the Acting General Counsel to the NSA, and so on. Second, at least at first blush, I'm not sure it's obvious that the Court will reverse. Unlike in the ACLU v. NSA case, in which the Sixth Circuit rejected standing in a challenge to the TSP, here there is a specific (and public) statutory authorization for surveillance that necessarily gives some fairly strong clues (to both private parties and the courts) as to how those whom the statute bars the government from targeting could nevertheless end up having their communications intercepted. The doctrinal question is whether the plaintiffs have alleged a "reasonable fear of injury and have incurred costs to avoid it." Thus, plaintiffs don't have to allege that they will be injured; they have to allege that it is reasonable for them to fear as much, and that they have therefore incurred costs to avoid that injury. To my mind, there's a lot to commend Judge Lynch's analysis of these points in both his panel opinion and his concurrence in the denial of rehearing en banc. Third, if the Court affirms (or denies certiorari), this case could very well finally settle the question whether the Fourth Amendment's Warrant Clause includes a "foreign intelligence surveillance exception," as the FISA Court of Review held in the In re Directives decision in 2008. That's because on the merits, 50 U.S.C. § 1881a(b)(5) mandates that the authorized surveillance "shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States." Thus, although it is hard to see how surveillance under § 1881a could violate the Fourth Amendment, explication of the (as yet unclear) Fourth Amendment principles that govern in such cases would necessarily circumscribe the government's authority under this provision going forward (especially if In re Directives is not followed...). That possibility, and the inability of adverse parties to obtain review of a FISA Court of Review decision (like In re Directives), seems to add only further urgency to the government's cert. petition--and its efforts to have the case thrown out on standing grounds. Stay tuned...
Steve Vladeck is a professor of law at the University of Texas School of Law. A 2004 graduate of Yale Law School, Steve clerked for Judge Marsha Berzon on the Ninth Circuit and Judge Rosemary Barkett on the Eleventh Circuit. In addition to serving as a senior editor of the Journal of National Security Law & Policy, Steve is also the co-editor of Aspen Publishers’ leading National Security Law and Counterterrorism Law casebooks.
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