I just realized that I never posted this decision. The background of Clappler v. Amnesty Int’l USA, No. 11-1024 (Feb. 26, 2013) is as follows. Attorneys for Guantanamo Bay prisoners challenged the surveillance of their attorney-client and confidential communications. In this case, to avoid surveillance on attorney-client communications and confidential communications, attorneys traveled to Guantanamo and had face-to-face communications. Respondents brought this lawsuit to prevent any current, past, or future surveillance on these communications. The Supreme Court rejected all of respondents’ arguments.
This case solely focused on Foreign Intelligence Surveillance Act (“FISA”), 50 USC 1881a. FISA allows the Attorney General and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who (1) are not “United States persons” and (2) are reasonably believed to be located outside of the United States. Before any surveillance, the government must obtain the Foreign Intelligence Surveillance Court’s (“FISC”) approval.
This case, in other words, only dealt with the question of the powers of the United States when performing surveillance of foreign communications.
In the 5-4 vote, the Supreme Court ruled that the plaintiffs could not prove by “pointing to specific facts” that any surveillance actually happened. Justice Alito held,
Respondents assert that they can establish injury in fact because there is an objectively reasonable likelihood that their communications will be acquired under§1881a at some point in the future. But respondents’ theory of future injury is too speculative to satisfy the well-established required that threatened injury must be “certainly impending.” And even if respondents could demonstrate that the threatened injury is certainly impending, they still would not be able to establish that this injury is fairly traceable to §1881a.
(Italics in original).
So what meets the burden of injury in fact? Justice Alito stated that “[a]lthough imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative… that the injury is certainly impending.” (Italics in original).
In sum, Justice Alito delineated how respondents might meet their burden.
Respondents must have “actual knowledge” that the government is performing surveillance on their contacts or clients.
Alternatively, respondents might meet their burden through imminent surveillance if two conditions are met. First, respondents must bring about “specific facts demonstrating that the communications of their foreign contacts will be targeted.” Second, if imminence was shown, respondents must show that the government “will seek to use <§1881a-authorized surveillance (rather than other methods) to do so” for the respondent’s contacts and clients, and that the court granted the FISC order.
What posits an interesting conundrum is how will parties know if they are or will be subjected to surveillance under the specific provision of § 1881a of FISA? The government knows for sure whether the plaintiffs’ communications where intercepted. Thus, the parties might only become aware when a case is brought against them with information gathered from a FISC order.