Second Circuit Reverses in Amnesty Int'l v. Clapper, Paving Way for Merits Ruling on Constitutionality of FISA Section 702

By Robert Chesney
Monday, March 21, 2011, 4:55 PM

* Amnesty International, et al. v. Clapper, et al. (2d Cir. Mar. 21, 2011) (reversing grant of summary judgment to government in FISA Amendments Act challenge)

 The plaintiffs in this suit are a mix of individuals and groups relating to law, media, human rights, and labor.  They argued that FISA section 702 (50 USC 1881a), added to FISA by the FISA Amendments Act of 2008, is unconstitutional.  Section 702 involves electronic surveillance for non-US persons located outside the United States, though the plaintiffs claim it impacts US citizens and residents in a manner that violates the First and Fourth Amendments as well as Article III and the separation of powers principle.  Previously, Judge Koetle (SDNY) granted summary judgment to the plaintiffs, holding that they failed to establish standing.  Today, in a 63-page opinion (Lynch, joined by Sack and Calabresi) posted here, the Second Circuit reversed.  The bottom line: 

Because standing may be based on a reasonable fear of future injury and costs incurred to avoid that injury, and the plaintiffs have established that they have a reasonable fear of injury and have incurred costs to avoid it, we agree that they have standing. (p. 5)