On March 21, 2011, the Second Circuit Court of Appeals ruled that plaintiffs have standing to challenge the constitutionality of the Foreign Intelligence Surveillance Act Amendments Act of 2008 (FAA) — a law that enables the government to monitor Americans’ international emails and phone calls. The case, Amnesty International v. Clapper, will now go back to the U.S. District Court for the Southern District of New York.
On December 19, 2008, the Brennan Center for Justice filed an amicus brief in the S.D.N.Y., urging the court to overturn the FAA. After the case was dismissed for lack of standing by the district court, the Brennan Center filed an amicus brief in the appeal to the Second Circuit on December 23, 2009. Summaries of the case and the Brennan Center’s briefs are below.
Amicus Brief Filed 12/23/2009
case also noted as Amnesty v. McConnell and Amnesty v. Blair
In Brief – On December 23, 2009, the Brennan Center, along with several other non-governmental organizations (below) concerned with civil liberties and privacy rights, filed an amicus brief in the Second Circuit Court of Appeals in the case of Amnesty International v. Clapper. The case challenges the constitutionality of the Foreign Intelligence Surveillance Act Amendments Act of 2008, which vastly expanded the government’s surveillance powers while simultaneously limiting judicial supervision of the way in which those powers are exercised. The district court dismissed the plaintiffs’ claims at the threshold, finding that the plaintiffs could not adequately prove that they had been harmed by the law.
Procedural History – The FISA Amendments Act of 2008 was signed into law by President Bush in July 2008. Shortly thereafter, the ACLU filed this lawsuit in the U.S. District Court for the Southern District of New York challenging the constitutionality of the new law, representing a coalition of organizations: The Nation, Amnesty International USA, Global Rights, Global Fund for Women, Human Rights Watch, PEN American Center, Service Employees International Union, Washington Office on Latin America and the International Criminal Defence Attorneys Association.
In August 2009, the district court dismissed the lawsuit on “standing” grounds because plaintiffs could not prove with certainty that they had been spied on. The court’s legal analysis would have the effect of placing the FAA – and other broad surveillance laws – permanently beyond the scope of judicial review. The dismissal was appealed in October 2009.
December 2009: Principal brief filed on appeal. Amicus briefs in support of the plaintiffs are filed by the Brennan Center and other civil liberties and privacy groups.
Questions Presented – The Brennan Center’s brief argues that the district court’s decision, if allowed to stand, unacceptably limits the judiciary’s critical role of evaluating the constitutionality of government surveillance activities. The brief shows that surveillance authorities, when insufficiently constrained by judicial oversight, have historically been prone to significant abuse, including violations of the right to free expression under the First Amendment as well as Fourth Amendment privacy rights. It urges the appeals court to reaffirm the role of the judiciary in protecting Americans’ fundamental rights and send the case back to the district court for consideration of the merits of the plaintiffs’ challenge.
Counsel – Barbara Moses of Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer P.C., and Sharon Bradford Franklin of The Constitution Project are co-counsel with Brennan Center on the 12/23/2009 amicus brief.
- The Center for Democracy and Technology
- The Constitution Project
- The Electronic Frontier Foundation
- The Rutherford Institute
Amicus Brief Filed 12/19/2008
On December 19, 2008, the Brennan Center for Justice filed a supplemental amicus curiae brief in Amnesty v. Clapper. The brief urged the court to overturn the FISA Amendments Act (FAA) — a law that enables the government to monitor Americans’ international emails and phone calls. The suit was filed on behalf of the ACLU, Amnesty International, and a number of other human rights organizations and defense attorneys. The brief argued that the FAA was unconstitutional on the grounds that it violates Americans’ Fourth Amendment rights, and fails to provide adequate privacy protections.
Summary of the 12/2008 Brief
The FAA dramatically expands governmental authority to seize communications of American citizens inside the United States without a prior judicial warrant. Having swept up communications involving U.S. citizens, the government is permitted by the FAA to retain and disseminate any “foreign intelligence information.” “Foreign intelligence information” is, however, defined to encompass not only information about “actual or potential attack or other grave hostile acts . . .; sabotage, international terrorism, or the international proliferation of weapons of mass destruction . . .; or clandestine intelligence activities by an intelligence service” and information about the “national defense or the security of the United States,” but also any communications concerning the “conduct of the foreign affairs of the United States.” This is an extremely broad definition, susceptible of expansive interpretation. Most or all of the professional communications of plaintiff journalists and human rights organizations, for example, would fall squarely into this exception. The Government does not dispute that the “broad and unsuspected governmental incursions into conversational privacy” that the FAA allows “necessitate[s] the application of Fourth Amendment safeguards.”
Under the FAA, the Foreign Intelligence Surveillance Court (FISC) must approve procedures when surveillance begins, but afterwards, lacks the authority to monitor or order modifications to those procedures. As the drafters of FISA recognized, ongoing judicial scrutiny is the best — perhaps only — way to ensure that procedures developed in the abstract in fact play their intended privacy-protecting role. Recent evidence confirms that without ongoing judicial supervision, procedures intended to restrict the government’s use of surveillance fail.
In sum, the FAA authorizes surveillance operations that lack specificity and preclude judicial monitoring, guaranteeing that the universe of protected communications intercepted, retained, and available for dissemination is unreasonably vast. Consequently, U.S. persons’ Fourth Amendment rights do not receive sufficient protection under the FAA.
Other Case Documents – For further information about this case and related materials, please visit the Liberty and National Security section of our site.