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Will SCOTUS Find Standing for Domestic Spying Plaintiffs?

By Robyn Hagan Cain | Last updated on

Supreme Court junkies might be suffering from withdrawal. After the thrill of the 2011 term — immigration, health care, etc. — the 2012 term seems tame by comparison. Sure, the Court reviewed affirmative action, but can anyone outside the legal sector name any other case from the first sitting? Doubtful.

Fear not. The November sitting will be a little more exciting, starting with the first case, Clapper v. Amnesty International USA. The case involves a challenge to a 2008 Foreign Intelligence Surveillance Act amendment, which provided for the government's use of electronic surveillance to monitor the international communications of people (including American citizens on U.S. soil) suspected of having ties to terrorist groups, reports The New York Times.

But the Supreme Court won't be resolving a Fourth Amendment issue; it's stepping in to determine whether the plaintiffs even have standing to bring their claim.

Specifically, the Court has agreed to consider whether the plaintiffs lack Article III standing to seek prospective relief because they proffered no evidence that the U.S. would imminently acquire their international communications using 50 U.S.C. 1881a-authorized surveillance, and did not show that an injunction prohibiting Section 1881a-authorized surveillance would likely redress their purported injuries.

Last year, a Second Circuit panel ruled that the plaintiffs, a collection of lawyers, journalists, and organizations representing media, labor, legal and human rights interests, had standing to pursue their case because they had demonstrated reasonable fear that their communications would be monitored and had taken "costly measures to avoid being monitored." The government, however, maintains that the plaintiffs must prove they're being monitored under the program for the suit more forward.

The problem with that theory is that the only way they can prove the alleged surveillance is if the government admits to the surveillance, the Electronic Frontier Foundation explains. So far, the feds have remained mum.

Given the Court's reluctance to endorse circular avoidance of standing in last term's Sackett v. EPA, it seems like Amnesty International and the public interest groups have a decent chance of winning before the Nine. Do you think the Court will conclude that the plaintiffs have standing, or will it find a procedural way to protect the global warrantless wiretapping program?

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