December 29, 2009
Law Profs File Amicus Brief in Second Circuit FISA Amendments Act Case
A group of law professors last week filed an amicus brief with the Second Circuit in Amnesty Int'l USA v. Blair, the case challenging the FISA Amendments Act of 2008, or the "FAA." The professors argue that petitioners possess Article III standing and that the district court's ruling dismissing the case for lack of standing should be vacated.
Petitioners brought their claim in the Southern District of New York as a facial challenge to the FAA under the First Amendment, the Fourth Amendment, and separation of powers principles. Petitioners argued that the FAA, which authorized broad surveillance of certain international communications, chilled their communications with cooperating organizations and individuals--that they had a well founded fear that their communications would be monitored and that they incurred burdensome expenses in order to avoid surveillance. (The ACLU has an outstanding page, including a collection of the litigation documents, here.)
The Southern District dismissed the case on standing grounds. The court ruled that the plaintiffs failed to allege a particularized injury--that they failed to alleged that their communications in fact had been surveilled. Plaintiffs appealed, and the case is now at the Second Circuit.
Several amici weighed in last week. The law professors traced the history and evolution of the standing doctrine and argued that the district court's ruling was out of step with the history, the Court's precedent, and the policies and purposes of the standing doctrine. From the Summary of Argument (starting on page 2 of the brief):
Amici respectfully submit that, under a proper understanding and application of the law, the injuries asserted by appellants in this case--(i) a "realistic danger" and an "actual and well-founded fear" that their communications will be monitored under the [FAA] and (ii) harm due to the costly and burdensome measures that the FAA has compelled appellants to take in order to protect the confidentiality of their communications--are more than sufficient to satisfy these requirements for Article III standing. . . .
Indeed, as we discuss below, the district court's determination that appellants lack standing here because they are not "subject to" the FAA more closely resembles the antiquated "legal interest" test for standing, which the Supreme Court expressly held was not the law almost forty years ago, than it does the law of standing as it exists today. . . .
[A]s we discussed below, the district court's decision in this case is irreconcilable with the applicable standing case law both as to probabilistic injury and as to the sort of indirect or derivative harms that courts have found sufficient to show judicially cognizable injury-in-fact. . . .
Indeed, the real policy danger here is that if appellants and those like them are denied standing to sue, then the FAA will be effectively insulated from all judicial review.
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