Secrecy: State Secrets Privilege

Supreme Court Oral Argument in Clapper v. Amnesty International This Morning [Updated]

By Alan Z. Rozenshtein
Monday, October 29, 2012, 9:34 AM

Proving once again that the judiciary is the most hardcore of the three branches, the Supreme Court remains open for business this morning. The Justices will hear oral argument in Clapper v. Amnesty International, about whether human rights groups have standing to challenge the constitutionality of counterterrorism-related global surveillance, given that the program is secret and thus they can't be sure that they are actually being surveilled. (In an editorial published yesterday, the New York Times calls the government's standing/state secrets argument "a particularly cynical Catch-22.") The groups and the Second Circuit say yes, and the government says no.

For background on the case, see SCOTUSblog's argument preview, as well as Steve's previous posts on the case. The government's briefs are here and here, and the groups' brief is here. Interesting amicus briefs include one on the government's side from six former attorneys general, and one on the groups' side from some of the original Church Committee members and staff (the committee that drafted the original FISA statute in response to surveillance abuses). And for the auditory learners among you, the Federalist Society has reposted a podcast about the case featuring Steve and Benjamin Powell, former General Counsel in the Office of the Director of National Intelligence.

[Update] The transcript from the oral argument is available here. SCOTUSblog's argument recap is here, and suggests that Clapper might be closer than what many commentators initially thought:

However the case may ultimately turn out, the atmospherics of the oral argument on it Monday suggested quite strongly that this was may well be a closer case than had been anticipated last May when the Court agreed to hear the government’s petition challenging a lower court’s finding of standing to sue.