University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name Amnesty v. Clapper NS-NY-0006
Docket / Court 1:08-cv-06259 ( S.D.N.Y. )
State/Territory New York
Case Type(s) National Security
Special Collection Foreign Intelligence Surveillance Act -- All Matters
Foreign Intelligence Surveillance Act -- Foreign Targeting (702, 703, 704)
Attorney Organization ACLU Chapters (any)
ACLU National (all projects)
Case Summary
In July 2008, plaintiffs--a group of attorneys, journalists, and human rights, labor, legal, and media organizations represented by the American Civil Liberties Union--filed suit in United States District Court for the Southern District of New York against the National Security Agency (NSA), the ... read more >
In July 2008, plaintiffs--a group of attorneys, journalists, and human rights, labor, legal, and media organizations represented by the American Civil Liberties Union--filed suit in United States District Court for the Southern District of New York against the National Security Agency (NSA), the Director of National Intelligence (DNI), and the United States challenging the constitutionality of the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1881 (FISA) under Article III of the Constitution, the Fourth and First Amendments, and separation of powers principles.

FISA provides a framework governing "applications for orders authorizing electronic surveillance to obtain foreign intelligence information, including surveillance of communications between persons located within the United States ("domestic communications") and surveillance of communications between persons located outside the United States ("international communications")." Amnesty Int'l USA v. McConnell, 646 F. Supp. 2d 633 (S.D.N.Y. 2009). Section 702 of FISA, 50 U.S.C. § 1881a, as added by the FISA Amendments Act of 2008 (FAA), permits the Attorney General and DNI to conduct foreign intelligence surveillance targeting the communications of non-U.S. persons located abroad, but the government need not establish probable cause that the target of electronic surveillance is a foreign power or agent of a foreign power, nor must government specify the nature and location of the facilities or places that surveillance will occur.

Plaintiffs argued that Section 702 violates the Fourth Amendment because it authorizes government to acquire communications of U.S. citizens and residents without obtaining individualized warrants based on probable cause. They argue Section 702 violates the First Amendment by substantially burdening lawful expressive activity. They argue that Section 702 violates Article III and separation of powers principles by allowing the process of judicial review established in the FAA allows the Foreign Intelligence Surveillance Court (FISC) to issue orders in the absence of a case or controversy.

Both parties moved for summary judgment, but the district court ruled that the plaintiffs lacked standing under Article III. In August 2009, the district court granted the government's motion for summary judgment. Amnesty Int'l USA v. McConnell, 646 F. Supp. 2d 633, 645 (S.D.N.Y. 2009). The district court found that the plaintiffs could only demonstrate "an abstract fear that their communications will be monitored under the FAA," and that "the chilling of their speech that they attribute to the statute is actually the result of their purely subjective fear of surveillance." Id. at 645, 653. The plaintiffs appealed to the U.S. Court of the Appeals for the Second Circuit, which reversed the district court's judgment in March 2011. Amnesty Int'l USA v. Clapper, 638 F.3d 118 (2d Cir. 2011), denied rehearing in banc, 667 F.3d 163 (2d Cir. 2011).

The government appealed to the Supreme Court, which ruled 5-4 in February 2013 that the plaintiffs lacked Article III standing because they "cannot demonstrate that the future injury they purportedly fear is certainly impending." Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138, 1155 (2013).

Elizabeth Homan - 11/03/2013


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Issues and Causes of Action
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Issues
Constitutional Clause
Federalism
Free Exercise Clause
Unreasonable search and seizure
Defendant-type
Jurisdiction-wide
General
Access to lawyers or judicial system
Confidentiality
Courts
Record-keeping
Records Disclosure
Search policies
Terrorism/Post 9-11 issues
Plaintiff Type
Private Plaintiff
Causes of Action Declaratory Judgment Act, 28 U.S.C. § 2201
Defendant(s) Central Security Service
Director of National Intelligence
National Security Agency
United States of America
Plaintiff Description Plaintiffs are a group of attorneys, journalists, and human rights, labor, legal, and media organizations who suspect their communication is under surveillance by the United States government.
Indexed Lawyer Organizations ACLU Chapters (any)
ACLU National (all projects)
Class action status sought No
Class action status granted No
Prevailing Party Defendant
Public Int. Lawyer Yes
Nature of Relief None
Source of Relief None
Form of Settlement None on record
Order Duration not on record
Case Closing Year 2013
Case Ongoing No
Additional Resources
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Links Guest Post: New Resource — Civil Rights Litigation Clearinghouse FISA Archives
Just Security
Posted: Jun. 26, 2014
By: Margo Schlanger
[ Detail ] [ External Link ]

Docket(s)
1:08-cv-06259-JGK (S.D.N.Y.) 08/01/2013
NS-NY-0006-9000 PDF | Detail
PACER [Public Access to Court Electronic Records]
General Documents
Complaint 07/10/2008
NS-NY-0006-0001 PDF | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order and Opinion (Denying Plaintiffs' Motion for Summary Judgment and Granting Government's Motion for Summary Judgment) 08/20/2009 (S.D.N.Y.)
NS-NY-0006-0002 PDF | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Opinion 04/16/2010 (638 F.3d 118)
NS-NY-0006-0003 PDF | WESTLAW| LEXIS | Detail
Document Source: Westlaw
Order (Denying Defendants-Appellees Rehearing En Banc) 09/21/2011 (667 F.3d 163)
NS-NY-0006-0004 PDF | WESTLAW| LEXIS | Detail
Document Source: Westlaw
Opinion 10/29/2012 (133 S.Ct. 1138)
NS-NY-0006-0005 PDF | WESTLAW | Detail
Document Source: Westlaw
Letter to Solicitor General Verrilli 11/20/2013
NS-NY-0006-0006 PDF | Detail
Letter to Solicitor General Verrilli 05/13/2014
NS-NY-0006-0007 PDF | Detail
Judges Alito, Samuel A. Jr. (SCOTUS, Third Circuit)
NS-NY-0006-0005
Koeltl, John George (S.D.N.Y.)
NS-NY-0006-0002 | NS-NY-0006-9000
Lynch, Gerard E. (S.D.N.Y., Second Circuit)
NS-NY-0006-0003 | NS-NY-0006-0004
Monitors/Masters None on record
Plaintiff's Lawyers Abdo, Alex (New York)
NS-NY-0006-9000
Dunn, Christopher (New York)
NS-NY-0006-9000
Eisenberg, Arthur (New York)
NS-NY-0006-9000
Goodman, Melissa (New York)
NS-NY-0006-0001 | NS-NY-0006-9000
Jaffer, Jameel (New York)
NS-NY-0006-0001 | NS-NY-0006-9000
Schwartztol, Laurence Michael (New York)
NS-NY-0006-9000
Tully, L. Danielle (New Jersey)
NS-NY-0006-0001 | NS-NY-0006-9000
Defendant's Lawyers Turner, Serrin Andrew (New York)
NS-NY-0006-9000
Verrilli, Donald B. Jr. (District of Columbia)
NS-NY-0006-0006 | NS-NY-0006-0007
Other Lawyers Abel, Laura K. (New Jersey)
NS-NY-0006-9000

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