nationalsecuritylaw 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)

* 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)

By Robert M. Chesney

Robert M. Chesney is Charles I. Francis Professor in Law at UT-Austin School of Law. Chesney is a national security law specialist, with a particular interest in problems associated with terrorism. Professor Chesney recently served in the Justice Department in connection with the Detainee Policy Task Force created by Executive Order 13493. He is a member of the Advisory Committee of the American Bar Association's Standing Committee on Law and National Security, a senior editor for the Journal of National Security Law & Policy, an associate member of the Intelligence Science Board, a non-resident senior fellow of the Brookings Institution, a term member of the Council on Foreign Relations, and a member of the American Law Institute. Professor Chesney has published extensively on topics ranging from detention and prosecution in the counterterrorism context to the states secrets privilege. He served previously as chair of the Section on National Security Law of the Association of American Law Schools and as editor of the National Security Law Report (published by the American Bar Association's Standing Committee on Law and National Security). His upcoming projects include two books under contract with Oxford University Press, one concerning the evolution of detention law and policy and the other examining the judicial role in national security affairs.

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