Clapper v. Amnesty International USA

133 S. Ct. 1138 (2013).


Is there standing?


Standing has three elements that need to be proved:

  1. Injury in fact (must be present injury, not future potential injury)
  2. Traceable to the injurious action.
  3. The injury can be redressed by a court order in favor of the injured party.

There is no standing, reversed and remanded.


Statute 1881a was passed to conduct surveillance on foreign intelligence. The state was limited where there were a variety of procedures to be conducted before any surveillance was collected. Additionally, it was limited to only foreign individuals residing outside of the United States.

The defendants are human rights workers (and others) who claim that the surveillance would target their clients abroad. As a result, the have incurred several costs in maintaining extra caution on telephone or email communications. Thus, they challenge the constitutionality of the statute and


There is no standing because there is no injury in fact that is traceable to the statute in question. How? Well, the statute has not actually caused them any harm. No communication has been gathered from the individuals they are worried about. Speculation of future harm is not enough to find an injury. Even if there was reasonable fear, it would be difficult to trace it back to the statute because there are so many ways that communication can be targeted (other than 1881a). In other words, if their fear was warranted, the courts would have a hard time knowing if the fear was associated with 1881a or another statute.

As for the costs that they incurred, these were done only in anticipation of an injury that had not yet occurred and was not yet threatening. “In other words, respondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.”


The focus here is that the injury was actual or imminent. Arguing that the injury was imminent, the dissent disagrees with the majority. Why? The fact that the statute simplified the process for approval to intercept from earlier requirements coupled with the fact that intercepted communication had been done under previous acts shows that it is extremely likely that additional communication will be intercepted.

Additional Notes

This is an example of justiciability or the courts exercise of “passive virtues.” When can the court take a case but not provide a decision on the merits of the case?

The statute in question here broadened FISA (Foreign Intelligence Surveillance Act).

However, the court here says that there is no standing. Standing has 3 main requirements:

  1. Injury in fact
  2. Traceable to the wrongdoing
  3. There is a redress available enforceable by the court

The main target of the majority is the first and second prong of these elements. First, the court says that there is no injury for something that is speculative in nature. There was no way at this point to show that the statute had actually hurt the plaintiffs. Second, the “injury” is not traceable to the statute in question because there are so many other potential statutes that could have been the cause of injury.

The best way of summing this up that there is no harm for fear of a hypothetical injury.

However, the dissent says that the harm has occurred. Under previous statutes, tons of surveillance had already taken place and it is sure that surveillance would continue under the new statute.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

Show Your Support


Table of Contents