Monday, March 21, 2011

Amnesty and Other Organizations have Standing to Challenge Constitutionality of FISA Amendments, Second Circuit Holds

A panel of the Second Circuit has reversed the district judge's summary judgment against plaintiffs who claimed that a portion of the FISA Amendments Act of 2008 ("FAA") amending the Foreign Intelligence Surveillance Act of 1978 (“FISA”), is unconstitutional.  

In a 63 page opinion, the panel in Amnesty International, USA v. Clapper considered the plaintiffs fears of being monitored by the government electronic surveillance authorized by FAA section 702 targeting  non-United States persons outside the United States for purposes of collecting foreign intelligence.  The unanimous opinion, written by Gerald Lynch and joined by Judges Guido Calabresi and Robert Sack, rejected the contentions of the government that the plantiffs' fears were too speculative. 

Spy Museum The panel articulated the relationship between the plaintiffs' fears and the concrete acts that the plaintiffs were taking to circumvent the government's surveillance:

If the plaintiffs can show that it was not unreasonable for them to incur costs out of fear that the government will intercept their communications under the FAA, then the measures they took to avoid interception can support standing. If the possibility of interception is remote or fanciful, however, their present-injury theory fails because the plaintiffs would have no reasonable basis for fearing interception under the FAA, and they cannot bootstrap their way into standing by unreasonably incurring costs to avoid a merely speculative or highly unlikely  potential harm. Any such costs would be gratuitous, and any ethical concerns about not taking those measures would be unfounded. In other words, for the purpose of standing, although the plaintiffs’ economic and professional injuries are injuries in fact, they cannot be said to be “fairly traceable” to the FAA – and cannot support standing – if they are caused by a fanciful, paranoid, or otherwise unreasonable fear of the FAA.

Opinion at 28-29.  The panel found it a significant distinction from Lyons v. City of Los Angeles (the "choke-hold" case) that FAA is a statute and not a government practice:

This case is not like Lyons, where the plaintiff feared injury from officers who would have been acting outside the law, making the injury less likely to occur. Here, the fact that the government has authorized the potentially harmful conduct means that the plaintiffs can reasonably assume that government officials will actually engage in that conduct by carrying out the authorized surveillance. It is fanciful, moreover, to question whether the government will ever undertake broad-based surveillance of the type authorized by the statute. The FAA was passed specifically to permit surveillance that was not permitted by FISA but that was believed necessary to protect the national security. [citations omitted]. That both the Executive and the Legislative branches of government believe that the FAA authorizes new types of surveillance, and have justified that new authorization as necessary to protecting the nation against attack, makes it extremely likely that such surveillance will occur.

Opinion at 38-39.  In addition to Amnesty, the plaintiff organizations include Global Fund For Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, and Washington Office on Latin America. The panel concluded that

the FAA has put the plaintiffs in a lose-lose situation: either they can continue to communicate sensitive information electronically and bear a substantial risk of being monitored under a statute they allege to be unconstitutional, or they can incur financial and professional costs to avoid being monitored. Either way, the FAA directly affects them.

Opinion at 52.  Thus, unless the finding of standing reaches the United States Supreme Court, the plaintiffs will proceed to the merits of their arguments that the FAA violates the First and Fourth Amendments, as well as being violative of the separation of powers and beyond the powers of Congress and the Executive.


[image: Spy Museum in Washington, DC via]

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