Cross-posted at Forbes.com’s WLF contributor page
The Supreme Court this week ruled that a group of American lawyers lack standing to challenge the 2008 law that expanded the U.S. government’s authority to engage in electronic surveillance of overseas aliens suspected of terrorism. To hear the reaction of the ACLU and other civil liberties groups to the decision in Clapper v. Amesty International, one would think that the Supreme Court is abandoning the rule of law and abdicating its responsibility to oversee the activities of the Executive Branch. Nonsense. The Court simply denied a right to sue by individuals who concede that they have no evidence that they have been subjected to surveillance. The decision is consistent with a long line of cases that have insisted on evidence of injury before a suit can go forward, particularly when the suit implicates national security concerns.
At issue are the 2008 amendments to the Foreign Sovereign Immunities Act (FISA). The amendments permit the federal government to engage in overseas surveillance of suspected terrorists under limited circumstances. But such surveillance is permitted under the FISA Amendments (FAA) only after the government has sought and obtained the consent of the FISA Court, a special court established to address national security issues.
On the day that the FAA was enacted, several lawyers and organizations (represented by the ACLU) filed a lawsuit seeking an injunction against surveillance conducted pursuant to the FAA. They alleged that the FAA violated their First and Fourth Amendments rights as well as separation-of-powers principles. Named as defendants were several senior Obama Administration officials, including Attorney General Eric Holder (whose authorization is required before any surveillance may be undertaken under the FAA). Although the law does not permit American citizens to be targeted for surveillance, the plaintiffs expressed a fear that the government would end up overhearing some of their conversations with those foreigners who are being targeted. Continue reading
Amanda McKinzie, a 2012 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law.
From the day Congress amended the Foreign Intelligence Surveillance Act of 1978 (FISA) to allow the communications of non-United States persons to be intercepted upon approval by the United States Foreign Intelligence Surveillance Court (FISC), parties have challenged the legislation’s constitutionality. Once such case, Clapper v. Amnesty International USA, recently reached the U.S. Supreme Court. The Court granted the federal government’s petition for certiorari on Monday, May 21, and will decide during the October 2012 term whether those challenging the law have Article III standing to sue.
The amendments to FISA do not permit the government to intercept communications of United States citizens to be intercepted. Despite this prohibition, the Clapper plaintiffs – U.S. attorneys, journalists, and labor, legal, media, and human rights organizations – claim they are fearful of being monitored. They assert that because they frequently communicate with potential international targets, there is a high probability that information they exchange will be intercepted. The plaintiffs further claim that based on this “well-founded fear,” they have expended much time, effort, and money in maintaining the confidentiality of their communications from potential interception. Accordingly, they argue that the future injury of interception coupled with their present expenditures provide standing to sue. Continue reading
In a 115-page memorandum opinion, Judge Sharon Lovelace Blackburn upheld certain portions of the Alabama immigration law passed in June and challenged by the Department of Justice. She enjoined other portions out of concern for preemption by federal law. A quick run-down of the provisions upheld and enjoine
- A provision prohibiting unauthorized aliens from enrolling in a public state university.
- A misdemeanor crime for unauthorized aliens to apply for, solicit, or perform work. Continue reading
The Supreme Court this week ruled unanimously to throw out the ACLU’s tort law claim against former Attorney General John Ashcroft, finding that he was entitled to qualified immunity from suit. It did not take long, however, for ACLUers to begin asserting that their loss contained numerous silver linings which did not let senior government officials completely off the hook. They pointed to several of the Court’s concurring opinions as their source of hope.
Those hopes are misplaced. A majority of the Justices made clear that tort claims of the sort asserted against Ashcroft have no chance of success. Justice Anthony Kennedy, who authored one of the concurring opinions, signed on to the Court’s opinion in full – meaning that Justice Scalia’s majority opinion (not the separately expressed views of Justices Ginsburg, Breyer, and Sotomayor) is the Court’s definitive statement regarding the Fourth Amendment issues at stake. Moreover, Kennedy’s concurring opinion said nothing that undercuts the sweeping nature of Scalia’s qualified immunity decision. Continue reading