Clapper v. Amnesty International USA (11-1025)
argument 11-1025Clapper v. Amnesty International USA
Supreme Court of the United States
1h 0m
7 speakers
8 chapters
transcribed 6 days ago
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What is the central legal question about standing in Clapper v. Amnesty International?
We'll hear argument first this morning in case eleven ten twenty five, Clapper versus Amnesty International. General Varilli.
Mr. Chief Justice, and may it please the Court, the question in this case is whether respondents have standing to bring a facial challenge to the 2008 amendments to the Foreign Intelligence Surveillance Act. Those amendments provide authority to the Executive to conduct surveillance targeted at foreign persons located abroad for foreign intelligence purposes. Along with that grant of authority, Congress imposed statutory protections designed.
Is there anybody who has standing As I read your brief Standing would only arise at the moment the government decided to use the information against someone in a pending case. that the Act if there were a violation I'm not suggesting there is. But that if there was a constitutional violation in the interception That no one could ever stop it until they were charged with a crime, essentially.
Your Honor. Under the statute, there are two clear examples of situations in which uh the individuals would have standing. The first is if uh an aggrieved person, someone who is uh a party to a communication, uh, gets notice that the government intends to introduce uh information in a proceeding against them. They have standing. That standing could include a facial challenge like the one here.
General Rurley, can you be specific on who that person would be because as I understand it It's unlikely that for example the l the lawyers in this case would be charged with any Criminal offence. It is more probable that their clients. Would be. But according to the government. their clients have no Fourth Amendment rights because they are p people who are non citizens who acted abroad. So it's hard for me to envision I see the theoretical possibility, but I don't see A real person who would be subject to a criminal charge who could raise an objection.
Well if the information were w if anyone gets notice, including the client, then the lawyer would know and the lawyer would be in a position
Yes, but the client is somebody who is abroad and who acted abroad and is not a U.S. citizen.
That is certainly true. But in addition, Your Honor, the statute provides that that electronic communications service providers can challenge authorizations under the Act. So you there certainly would be standing in that instance. There was certainly
is it that a service provider would would object.
Well, the service provider did object to the immediate statutory predecessor to the two thousand eight amendments and the and the uh FISA court litigated that constitutional challenge, so there's a concrete context there in which it arises. But even but because And the
l litigation was unsuccessful.
Well that's right, the court found there was no Fourth Amendment violation there. But the but I think the point here, Your Honor, i the the key point is this. That The the In a normal case, a plaintiff would challenge the application of the authority to that plaintiff. In a situation like this one, we acknowledge that it may be difficult for a plaintiff to do so because and a challenge to the application gets into classified information pretty quickly. I think what the respondents have tried to do here is to find a theory of the case that avoids that difficulty. Well you just Well you just
and um what you just mentioned, suppose does not suppose that the court should hold There is standing. Couldn't the government then say as far as the merits of the complaint this information is classified, these are state secrets, we can't we can't go forward with the litigation.
Uh that is a possibility. Of course there's a procedure that the executive branch would have to go through, but that's a possibility. But I I don't think we can get to that point, Your Honor, because I do think the key point here is that the respondents' claims about this statute depend on a cascade of speculation. This statute only grants authority, it doesn't command anything. And in order for the respondents to make a claim that they are injured in fact by this statute
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Chapters
8 chapters
1
What is the central legal question about standing in Clapper v. Amnesty International?
0:01–6:41
2
How do the parties argue whether plaintiffs have a concrete injury under the 2008 FISA amendments?
6:41–13:57
3
Why do the respondents rely on speculative chains of inference to establish injury?
13:57–22:06
4
How does the Court’s “certainly impending” standard compare to the “substantial risk” test?
22:06–28:42
5
What analogies are drawn between this case and Monsanto/Laidlaw pre‑enforcement challenges?
28:42–36:39
6
What specific precautionary measures do journalists and lawyers claim to take because of the statute?
36:39–44:17
7
How do the parties describe the statutory safeguards, minimization procedures, and oversight mechanisms?
44:17–53:08
8
What conclusions does the Court reach about the plaintiffs’ standing and the viability of a facial challenge?
53:08–1:00:34