March 25, 2013
On February 26, 2013, the Supreme Court announced its decision in Clapper v. Amnesty International USA. This case concerns Congress’s 2008 amendments to the Foreign Intelligence Surveillance Act (FISA), which created a new framework under which the Government may seek judicial authorization of certain foreign intelligence surveillance targeting the communications of non-U. S. persons located abroad. The question before the Court was whether US groups and individuals who contend that the 2008 amendments violate a number of constitutional provisions have standing to bring their challenge in court.
In an opinion delivered by Justice Alito, the Court held by a vote of 5-4 that the challengers had not demonstrated sufficient present or impending injury fairly traceable to the 2008 FISA amendments to establish standing to sue. Chief Justice Roberts and Justices Scalia, Kennedy and Thomas joined Justice Alito’s opinion. Justice Breyer filed a dissenting opinion, which was joined by Justices Ginsburg, Sotomayor and Kagan.
To discuss the case, we have Benjamin Powell, who is a Partner at WilmerHale.