By Erin Mee

The Supreme Court ruled in a close vote to allow the United States government to monitor communications of people they believed to be in foreign countries without a warrant. This decision significantly infringes on the rights of United States citizens because it allows the government to monitor communications without probable cause, effectively trampling on the Fourth Amendment’s prohibition of unreasonable searches and seizures.

In Clapper v. Amnesty International, the Court declined to answer the question as to whether §1881a of the Foreign Intelligence Surveillance Act of 1978 (FISA) was constitutional, instead holding that the plaintiffs lacked standing to challenge the law and dismissing the case. In a 5-4 decision written by Justice Alito, the Court found that a group of journalists, lawyers, and human rights activists who challenged FISA failed to demonstrate that the statute caused them injury or that the statute would likely cause them injury in the future. The journalists, lawyers, and human rights activists who challenged FISA argued that their communications with individuals located outside of the United States would be illegally scrutinized by the government if FISA were to be upheld. They maintained that the law posed significant financial and logistical burdens to them by forcing them to meet with sources and clients in person rather than through email or telephone communications. Additionally, lawyers working with clients in Guantanamo argued that this law would violate attorney-client privilege by allowing the government to eavesdrop on their communications with clients housed in the prison.

Justices Alito, Scalia, Kennedy, and Thomas, and Chief Justice Roberts rejected the argument to FISA on the basis that the plaintiffs did not have standing to challenge the law. The majority asserted that the plaintiffs did not have standing because the likelihood of government spying “rests on a speculative chain of possibilities that does not establish that their potential injury is certainly impending or is fairly traceable to §1881a” (Clapper v. Amnesty International USA). The majority reasoned that since the group challenging the law is comprised of United States citizens, only their foreign contacts will be targeted. The Court further asserted that because the journalists, lawyers, and activists do not know the intricacies of the government’s targeting practices, their challenge to the law is based on purely hypothetical injuries.

The majority’s reasoning is illogical. In order for standing to be granted, a plaintiff must prove that he or she has been injured or will be injured imminently because of a statute. Even if the journalists, lawyers, and activists failed to prove that their communications were monitored or were likely to be monitored in the future due to their lack of knowledge regarding the government’s targeting practices, the group should have been granting standing because FISA on its face violates constitutional principles by allowing the government to search communications between United States citizens and those in foreign countries without a warrant. If that argument failed, the journalists, lawyers, and activists should have been found to have standing because they could demonstrate that they have suffered as a result of the costly and circuitous steps they have taken to ensure that their communications with foreign associates are held away from the prying eyes of the government.

The dissent, comprised of Justices Breyer, Ginsburg, Sotomayor, and Kagan, argued that the likelihood of the government spying on communications between the journalists, lawyers, and human rights activists and their foreign associates “is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen” (Clapper v. Amnesty International USA). In Clapper, the majority’s holding is incongruous with other standing decisions and allows the Court to simply cherry pick which statutes violate Constitutional principles so that citizens have standing to challenge them.

It is unlikely that the court will ever rule on the constitutionality of §1881a of FISA since the challenge to it was thrown out before such arguments were even made.  This ruling is a travesty for civil liberties in the United States because all three branches of government have upheld a statute that blatantly and overtly allows the government to perform warrantless searches on United States citizens.


CLAPPER v. AMNESTY INTERNATIONAL USA, No. 11–1025. Argued October 29, 2012—Decided February 26, 2013.