On October 29, 2012, the Supreme Court heard an important national security case that will answer a crucial question of standing. The case, Clapper v. Amnesty International, asks whether individuals and organizations that believe that their international communications will be monitored by the U.S. government have standing to challenge the government's surveillance in cases where the plaintiffs are unable to present direct evidence that the United States has acquired or will imminently acquire their communications. The case arises in the context of Section 702 of the FISA (Foreign Intelligence Surveillance Act) Amendments Act of 2008 (FAA), which permits the "targeting of [non-United States] persons reasonably believed to be located outside the United States" to acquire "foreign intelligence information." Attorneys, journalists, and various organizations brought this action facially challenging the law under the First and Fourth Amendments and Article III of the Constitution. They claim standing because the FAA’s new procedures have forced them to take costly measures to protect the confidentiality of their international communications. Accordingly, they argue the government's surveillance of international communications both has caused them present injury and will likely cause them future harm. The Second Circuit Court of Appeals held that plaintiffs had standing to pursue their claims, and the U.S. Government appealed. In May, the Supreme Court granted certiorari to decide the matter. On this previously recorded conference call, our experts discuss the case and answer questions from callers.
- Hon. Benjamin A. Powell, Wilmer Cutler Pickering Hale and Dorr LLP
- Prof. Stephen I. Vladeck, American University Washington College of Law
- Moderator: Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society