Clapper v. Amnesty International USA

(Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CLAPPER, DIRECTOR OF NATIONAL INTELLIGENCE,
ET AL. v. AMNESTY INTERNATIONAL USA ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 11–1025. Argued October 29, 2012—Decided February 26, 2013
Section 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA),
50 U. S. C. §1881a, added by the FISA Amendments Act of 2008,
permits the Attorney General and the Director of National Intelli-
gence to acquire foreign intelligence information by jointly authoriz-
ing the surveillance of individuals who are not “United States per-
sons” and are reasonably believed to be located outside the United
States. Before doing so, the Attorney General and the Director of Na-
tional Intelligence normally must obtain the Foreign Intelligence
Surveillance Court’s (FISC) approval. Surveillance under §1881a is
subject to statutory conditions, judicial authorization, congressional
supervision, and compliance with the Fourth Amendment. Respond-
ents—attorneys and human rights, labor, legal, and media organiza-
tions—are United States persons who claim that they engage in sen-
sitive international communications with individuals who they
believe are likely targets of §1881a surveillance. On the day that the
FISA Amendments Act was enacted, they filed suit, seeking a decla-
ration that §1881a is facially unconstitutional and a permanent in-
junction against §1881a-authorized surveillance. The District Court
found that respondents lacked standing, but the Second Circuit re-
versed, holding that respondents showed (1) an “objectively reasona-
ble likelihood” that their communications will be intercepted at some
time in the future, and (2) that they are suffering present injuries re-
sulting from costly and burdensome measures they take to protect
the confidentiality of their international communications from possi-
ble §1881a surveillance.
Held: Respondents do not have Article III standing. Pp. 8–24.
(a) To establish Article III standing, an injury must be “concrete,
2 CLAPPER v. AMNESTY INTERNATIONAL USA
Syllabus
particularized, and actual or imminent; fairly traceable to the chal-
lenged action; and redressable by a favorable ruling.” Monsanto Co.
v. Geertson Seed Farms, 561 U. S. ___, ___. “[T]hreatened injury
must be ‘ “certainly impending” ’ to constitute injury in fact,” and
“[a]llegations of possible future injury” are not sufficient. Whitmore
v. Arkansas, 495 U. S. 149, 158. Pp. 8–10.
(b) Respondents assert that they have suffered injury in fact that is
fairly traceable to §1881a because there is an objectively reasonable
likelihood that their communications with their foreign contacts will
be intercepted under §1881a at some point. This argument fails. Ini-
tially, the Second Circuit’s “objectively reasonable likelihood” stand-
ard is inconsistent with this Court’s “threatened injury” requirement.
Respondents’ standing theory also rests on a speculative chain of pos-
sibilities that does not establish that their potential injury is certain-
ly impending or is fairly traceable to §1881a. First, it is highly specu-
lative whether the Government will imminently target
communications to which respondents are parties. Since respond-
ents, as U. S. persons, cannot be targeted under §1881a, their theory
necessarily rests on their assertion that their foreign contacts will be
targeted. Yet they have no actual knowledge of the Government’s
§1881a targeting practices. Second, even if respondents could
demonstrate that the targeting of their foreign contacts is imminent,
they can only speculate as to whether the Government will seek to
use §1881a-authorized surveillance instead of one of the Govern-
ment’s numerous other surveillance methods, which are not chal-
lenged here. Third, even if respondents could show that the Govern-
ment will seek FISC authorization to target respondents’ foreign
contacts under §1881a, they can only speculate as to whether the
FISC will authorize the surveillance. This Court is reluctant to en-
dorse standing theories that require guesswork as to how independ-
ent decisionmakers will exercise their judgment. See, e.g., Whitmore,
supra, at 159–160. Fourth, even if the Government were to obtain
the FISC’s approval to target respondents’ foreign contacts under
§1881a, it is unclear whether the Government would succeed in ac-
quiring those contacts’ communications. And fifth, even if the Gov-
ernment were to target respondents’ foreign contacts, respondents
can only speculate as to whether their own communications with
those contacts would be incidentally acquired. Pp. 10–15.
(c) Respondents’ alternative argument is also unpersuasive. They
claim that they suffer ongoing injuries that are fairly traceable to
§1881a because the risk of §1881a surveillance requires them to take
costly and burdensome measures to protect the confidentiality of
their communications. But respondents cannot manufacture stand-
ing by choosing to make expenditures based on hypothetical future
Cite as: 568 U. S. ____ (2013) 3
Syllabus
harm that is not certainly impending. Because they do not face a
threat of certainly impending interception under §1881a, their costs
are simply the product of their fear of surveillance, which is insuffi-
cient to create standing. See Laird v. Tatum, 408 U. S. 1, 10–15. Ac-
cordingly, any ongoing injuries that respondents are suffering are not
fairly traceable to §1881a. Pp. 16–20.
(d) Respondents’ remaining arguments are likewise unavailing.
Contrary to their claim, their alleged injuries are not the same kinds
of injuries that supported standing in cases such as Friends of the
Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S.
167, Meese v. Keene, 481 U. S. 465, and Monsanto, supra. And their
suggestion that they should be held to have standing because other-
wise the constitutionality of §1881a will never be adjudicated is both
legally and factually incorrect. First, “ ‘[t]he assumption that if re-
spondents have no standing to sue, no one would have standing, is
not a reason to find standing.’ ” Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc., 454 U. S.
464, 489. Second, the holding in this case by no means insulates
§1881a from judicial review. Pp. 20–23.
638 F. 3d 118, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and SCALIA, KENNEDY, and THOMAS, JJ., joined. BREYER, J., filed a dis-
senting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ.,
joined.
Cite as: 568 U. S. ____ (2013) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–1025
_________________
JAMES R. CLAPPER, JR., DIRECTOR OF NATIONAL
INTELLIGENCE, ET AL., PETITIONERS v.
AMNESTY INTERNATIONAL USA ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[February 26, 2013]
JUSTICE ALITO delivered the opinion of the Court.
Section 702 of the Foreign Intelligence Surveillance Act
of 1978, 50 U. S. C. §1881a (2006 ed., Supp. V), allows the
Attorney General and the Director of National Intelligence
to acquire foreign intelligence information by jointly au-
thorizing the surveillance of individuals who are not
“United States persons”1 and are reasonably believed to be
located outside the United States. Before doing so, the
Attorney General and the Director of National Intelligence
normally must obtain the Foreign Intelligence Surveil-
lance Court’s approval. Respondents are United States
persons whose work, they allege, requires them to engage
in sensitive international communications with individ-
uals who they believe are likely targets of surveillance
under §1881a. Respondents seek a declaration that
§1881a is unconstitutional, as well as an injunction
against §1881a-authorized surveillance. The question
——————
1 The term “United States person” includes citizens of the United
States, aliens admitted for permanent residence, and certain associa-
tions and corporations. 50 U. S. C. §1801(i); see §1881(a).
2 CLAPPER v. AMNESTY INTERNATIONAL USA
Opinion of the Court
before us is whether respondents have Article III standing
to seek this prospective relief.
Respondents assert that they can establish injury in fact
because there is an objectively reasonable likelihood that
their communications will be acquired under §1881a at
some point in the future. But respondents’ theory of fu-
ture injury is too speculative to satisfy the well-established
requirement that threatened injury must be “certainly
impending.” E.g., Whitmore v. Arkansas, 495 U. S. 149,
158 (1990). And even if respondents could demonstrate
that the threatened injury is certainly impending, they
still would not be able to establish that this injury is fairly
traceable to §1881a. As an alternative argument, re-
spondents contend that they are suffering present injury
because the risk of §1881a-authorized surveillance al-
ready has forced them to take costly and burdensome meas-
ures to protect the confidentiality of their international
communications. But respondents cannot manufacture stand-
ing by choosing to make expenditures based on hypothet-
ical future harm that is not certainly impending. We
therefore hold that respondents lack Article III standing.
I
A
In 1978, after years of debate, Congress enacted the
Foreign Intelligence Surveillance Act (FISA) to authorize
and regulate certain governmental electronic surveillance
of communications for foreign intelligence purposes. See
92 Stat. 1783, 50 U. S. C. §1801 et seq.; 1 D. Kris & J.
Wilson, National Security Investigations & Prosecutions
§§3.1, 3.7 (2d ed. 2012) (hereinafter Kris & Wilson). In
enacting FISA, Congress legislated against the backdrop
of our decision in United States v. United States Dist.
Court for Eastern Dist. of Mich., 407 U. S. 297 (1972)
(Keith), in which we explained that the standards and
procedures that law enforcement officials must follow
Cite as: 568 U. S. ____ (2013) 3
Opinion of the Court
when conducting “surveillance of ‘ordinary crime’ ” might
not be required in the context of surveillance conducted
for domestic national-security purposes. Id., at 322–323.
Although the Keith opinion expressly disclaimed any
ruling “on the scope of the President’s surveillance power
with respect to the activities of foreign powers,” id., at 308,
it implicitly suggested that a special framework for foreign
intelligence surveillance might be constitutionally permis-
sible, see id., at 322–323.
In constructing such a framework for foreign intel-
ligence surveillance, Congress created two specialized
courts. In FISA, Congress authorized judges of the For-
eign Intelligence Surveillance Court (FISC) to approve
electronic surveillance for foreign intelligence purposes if
there is probable cause to believe that “the target of the
electronic surveillance is a foreign power or an agent of a
foreign power,” and that each of the specific “facilities or
places at which the electronic surveillance is directed is
being used, or is about to be used, by a foreign power or an
agent of a foreign power.” §105(a)(3), 92 Stat. 1790; see
§§105(b)(1)(A), (b)(1)(B), ibid.; 1 Kris & Wilson §7:2, at
194–195; id., §16:2, at 528–529. Additionally, Congress
vested the Foreign Intelligence Surveillance Court of
Review with jurisdiction to review any denials by the
FISC of applications for electronic surveillance. §103(b),
92 Stat. 1788; 1 Kris & Wilson §5:7, at 151–153.
In the wake of the September 11th attacks, President
George W. Bush authorized the National Security Agency
(NSA) to conduct warrantless wiretapping of telephone
and e-mail communications where one party to the com-
munication was located outside the United States and a
participant in “the call was reasonably believed to be a
member or agent of al Qaeda or an affiliated terrorist
organization,” App. to Pet. for Cert. 403a. See id., at
263a–265a, 268a, 273a–279a, 292a–293a; American Civil
Liberties Union v. NSA, 493 F. 3d 644, 648 (CA6 2007)
4 CLAPPER v. AMNESTY INTERNATIONAL USA
Opinion of the Court
(ACLU) (opinion of Batchelder, J.). In January 2007, the
FISC issued orders authorizing the Government to target
international communications into or out of the United
States where there was probable cause to believe that one
participant to the communication was a member or agent
of al Qaeda or an associated terrorist organization. App.
to Pet. for Cert. 312a, 398a, 405a. These FISC orders sub-
jected any electronic surveillance that was then occur-
ring under the NSA’s program to the approval of the FISC.
Id., at 405a; see id., at 312a, 404a. After a FISC Judge
subsequently narrowed the FISC’s authorization of such
surveillance, however, the Executive asked Congress to
amend FISA so that it would provide the intelligence
community with additional authority to meet the chal-
lenges of modern technology and international terrorism.
Id., at 315a–318a, 331a–333a, 398a; see id., at 262a,
277a–279a, 287a.
When Congress enacted the FISA Amendments Act of
2008 (FISA Amendments Act), 122 Stat. 2436, it left much
of FISA intact, but it “established a new and independent
source of intelligence collection authority, beyond that
granted in traditional FISA.” 1 Kris & Wilson §9:11, at
349–350. As relevant here, §702 of FISA, 50 U. S. C.
§1881a (2006 ed., Supp. V), which was enacted as part
of the FISA Amendments Act, supplements pre-existing
FISA authority by creating a new framework under which
the Government may seek the FISC’s authorization of
certain foreign intelligence surveillance targeting the
communications of non-U. S. persons located abroad.
Unlike traditional FISA surveillance, §1881a does not
require the Government to demonstrate probable cause
that the target of the electronic surveillance is a for-
eign power or agent of a foreign power. Compare
§§1805(a)(2)(A), (a)(2)(B), with §§1881a(d)(1), (i)(3)(A); 638
F. 3d 118, 126 (CA2 2011); 1 Kris & Wilson §16:16, at 584.
And, unlike traditional FISA, §1881a does not require the
Cite as: 568 U. S. ____ (2013) 5
Opinion of the Court
Government to specify the nature and location of each of
the particular facilities or places at which the electronic
surveillance will occur. Compare §§1805(a)(2)(B), (c)(1)
(2006 ed. and Supp. V), with §§1881a(d)(1), (g)(4), (i)(3)(A);
638 F. 3d, at 125–126; 1 Kris & Wilson §16:16, at 585.2
The present case involves a constitutional challenge to
§1881a. Surveillance under §1881a is subject to statutory
conditions, judicial authorization, congressional supervi-
sion, and compliance with the Fourth Amendment. Sec-
tion 1881a provides that, upon the issuance of an order
from the Foreign Intelligence Surveillance Court, “the
Attorney General and the Director of National Intelligence
may authorize jointly, for a period of up to 1 year . . . , the
targeting of persons reasonably believed to be located
outside the United States to acquire foreign intelligence
information.” §1881a(a). Surveillance under §1881a may
not be intentionally targeted at any person known to be in
the United States or any U. S. person reasonably believed
to be located abroad. §§1881a(b)(1)–(3); see also §1801(i).
Additionally, acquisitions under §1881a must comport
with the Fourth Amendment. §1881a(b)(5). Moreover,
surveillance under §1881a is subject to congressional
oversight and several types of Executive Branch review.
See §§1881a(f)(2), (l); Amnesty Int’l USA v. McConnell, 646
F. Supp. 2d 633, 640–641 (SDNY 2009).
Section 1881a mandates that the Government obtain
the Foreign Intelligence Surveillance Court’s approval of
“targeting” procedures, “minimization” procedures, and a
governmental certification regarding proposed surveil-
lance. §§1881a(a), (c)(1), (i)(2), (i)(3). Among other things,
the Government’s certification must attest that (1) pro-
cedures are in place “that have been approved, have
been submitted for approval, or will be submitted with the
——————
2 Congress recently reauthorized the FISA Amendments Act for an-
other five years. See 126 Stat. 1631.
6 CLAPPER v. AMNESTY INTERNATIONAL USA
Opinion of the Court
certification for approval by the [FISC] that are reason-
ably designed” to ensure that an acquisition is “limited
to targeting persons reasonably believed to be located
outside” the United States; (2) minimization procedures
adequately restrict the acquisition, retention, and dissem-
ination of nonpublic information about unconsenting U. S.
persons, as appropriate; (3) guidelines have been adopted
to ensure compliance with targeting limits and the Fourth
Amendment; and (4) the procedures and guidelines re-
ferred to above comport with the Fourth Amendment.
§1881a(g)(2); see §1801(h).
The Foreign Intelligence Surveillance Court’s role
includes determining whether the Government’s certifi-
cation contains the required elements. Additionally, the
Court assesses whether the targeting procedures are
“reasonably designed” (1) to “ensure that an acquisition
. . . is limited to targeting persons reasonably believed to
be located outside the United States” and (2) to “prevent
the intentional acquisition of any communication as to
which the sender and all intended recipients are known
. . . to be located in the United States.” §1881a(i)(2)(B).
The Court analyzes whether the minimization procedures
“meet the definition of minimization procedures under
section 1801(h) . . . , as appropriate.” §1881a(i)(2)(C). The
Court also assesses whether the targeting and minimiza-
tion procedures are consistent with the statute and the
Fourth Amendment. See §1881a(i)(3)(A).3
——————
3 The dissent attempts to downplay the safeguards established by
§1881a. See post, at 4 (opinion of BREYER, J.). Notably, the dissent
does not directly acknowledge that §1881a surveillance must comport
with the Fourth Amendment, see §1881a(b)(5), and that the Foreign
Intelligence Surveillance Court must assess whether targeting and
minimization procedures are consistent with the Fourth Amendment,
see §1881a(i)(3)(A).
Cite as: 568 U. S. ____ (2013) 7
Opinion of the Court
B
Respondents are attorneys and human rights, labor,
legal, and media organizations whose work allegedly
requires them to engage in sensitive and sometimes privi-
leged telephone and e-mail communications with col-
leagues, clients, sources, and other individuals located
abroad. Respondents believe that some of the people with
whom they exchange foreign intelligence information are
likely targets of surveillance under §1881a. Specifically,
respondents claim that they communicate by telephone
and e-mail with people the Government “believes or be-
lieved to be associated with terrorist organizations,” “peo-
ple located in geographic areas that are a special focus” of
the Government’s counterterrorism or diplomatic efforts,
and activists who oppose governments that are supported
by the United States Government. App. to Pet. for Cert.
399a.
Respondents claim that §1881a compromises their
ability to locate witnesses, cultivate sources, obtain infor-
mation, and communicate confidential information to their
clients. Respondents also assert that they “have ceased
engaging” in certain telephone and e-mail conversations.
Id., at 400a. According to respondents, the threat of sur-
veillance will compel them to travel abroad in order to
have in-person conversations. In addition, respondents
declare that they have undertaken “costly and burden-
some measures” to protect the confidentiality of sensitive
communications. Ibid.
C
On the day when the FISA Amendments Act was en-
acted, respondents filed this action seeking (1) a declaration
that §1881a, on its face, violates the Fourth Amendment,
the First Amendment, Article III, and separation-of-
powers principles and (2) a permanent injunction against
the use of §1881a. Respondents assert what they charac-
8 CLAPPER v. AMNESTY INTERNATIONAL USA
Opinion of the Court
terize as two separate theories of Article III standing.
First, they claim that there is an objectively reasonable
likelihood that their communications will be acquired
under §1881a at some point in the future, thus causing
them injury. Second, respondents maintain that the risk
of surveillance under §1881a is so substantial that they
have been forced to take costly and burdensome measures
to protect the confidentiality of their international com-
munications; in their view, the costs they have incurred
constitute present injury that is fairly traceable to §1881a.
After both parties moved for summary judgment, the
District Court held that respondents do not have standing.
McConnell, 646 F. Supp. 2d, at 635. On appeal, however,
a panel of the Second Circuit reversed. The panel agreed
with respondents’ argument that they have standing due
to the objectively reasonable likelihood that their commu-
nications will be intercepted at some time in the future.
638 F. 3d, at 133, 134, 139. In addition, the panel held
that respondents have established that they are suffering
“present injuries in fact—economic and professional
harms—stemming from a reasonable fear of future harm-
ful government conduct.” Id., at 138. The Second Circuit
denied rehearing en banc by an equally divided vote. 667
F. 3d 163 (2011).
Because of the importance of the issue and the novel
view of standing adopted by the Court of Appeals,
we granted certiorari, 566 U. S. ___ (2012), and we now
reverse.
II
Article III of the Constitution limits federal courts’
jurisdiction to certain “Cases” and “Controversies.” As we
have explained, “[n]o principle is more fundamental to the
judiciary’s proper role in our system of government than
the constitutional limitation of federal-court jurisdiction to
actual cases or controversies.” DaimlerChrysler Corp. v.
Cite as: 568 U. S. ____ (2013) 9
Opinion of the Court
Cuno, 547 U. S. 332, 341 (2006) (internal quotation marks
omitted); Raines v. Byrd, 521 U. S. 811, 818 (1997) (inter-
nal quotation marks omitted); see, e.g., Summers v. Earth
Island Institute, 555 U. S. 488, 492–493 (2009). “One
element of the case-or-controversy requirement” is that
plaintiffs “must establish that they have standing to sue.”
Raines, supra, at 818; see also Summers, supra, at 492–
493; DaimlerChrysler Corp., supra, at 342; Lujan v. De-
fenders of Wildlife, 504 U. S. 555, 560 (1992).
The law of Article III standing, which is built on
separation-of-powers principles, serves to prevent the
judicial process from being used to usurp the powers of the
political branches. Summers, supra, at 492–493; Daimler-
Chrysler Corp., supra, at 341–342, 353; Raines, supra,at 818–820; Valley Forge Christian College v. Americans
United for Separation of Church and State, Inc., 454 U. S.
464, 471–474 (1982); Schlesinger v. Reservists Comm. to
Stop the War, 418 U. S. 208, 221–222 (1974). In keeping
with the purpose of this doctrine, “[o]ur standing inquiry
has been especially rigorous when reaching the merits of
the dispute would force us to decide whether an action
taken by one of the other two branches of the Federal
Government was unconstitutional.” Raines, supra, at
819–820; see Valley Forge Christian College, supra, at
473–474; Schlesinger, supra, at 221–222. “Relaxation of
standing requirements is directly related to the expansion
of judicial power,” United States v. Richardson, 418 U. S.
166, 188 (1974) (Powell, J., concurring); see also Summers,
supra, at 492–493; Schlesinger, supra, at 222, and we have
often found a lack of standing in cases in which the Judi-
ciary has been requested to review actions of the political
branches in the fields of intelligence gathering and foreign
affairs, see, e.g., Richardson, supra, at 167–170 (plaintiff
lacked standing to challenge the constitutionality of a
statute permitting the Central Intelligence Agency to
account for its expenditures solely on the certificate of the
10 CLAPPER v. AMNESTY INTERNATIONAL USA
Opinion of the Court
CIA Director); Schlesinger, supra, at 209–211 (plaintiffs
lacked standing to challenge the Armed Forces Reserve
membership of Members of Congress); Laird v. Tatum,
408 U. S. 1, 11–16 (1972) (plaintiffs lacked standing to
challenge an Army intelligence-gathering program).
To establish Article III standing, an injury must be
“concrete, particularized, and actual or imminent; fairly
traceable to the challenged action; and redressable by a
favorable ruling.” Monsanto Co. v. Geertson Seed Farms,
561 U. S. ___, ___ (2010) (slip op., at 7); see also Summers,
supra, at 493; Defenders of Wildlife, 504 U. S., at 560–561.
“Although imminence is concededly a somewhat elastic
concept, it cannot be stretched beyond its purpose, which
is to ensure that the alleged injury is not too speculative
for Article III purposes—that the injury is certainly
impending.” Id., at 565, n. 2 (internal quotation marks
omitted). Thus, we have repeatedly reiterated that
“threatened injury must be certainly impending to consti-
tute injury in fact,” and that “[a]llegations of possible
future injury” are not sufficient. Whitmore, 495 U. S., at
158 (emphasis added; internal quotation marks omitted);
see also Defenders of Wildlife, supra, at 565, n. 2, 567, n. 3;
see DaimlerChrysler Corp., supra, at 345; Friends of the
Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,
528 U. S. 167, 190 (2000); Babbitt v. Farm Workers, 442
U. S. 289, 298 (1979).
III
A
Respondents assert that they can establish injury in fact
that is fairly traceable to §1881a because there is an objec-
tively reasonable likelihood that their communications
with their foreign contacts will be intercepted under
§1881a at some point in the future. This argument fails.
As an initial matter, the Second Circuit’s “objectively
reasonable likelihood” standard is inconsistent with our
Cite as: 568 U. S. ____ (2013) 11
Opinion of the Court
requirement that “threatened injury must be certainly
impending to constitute injury in fact.” Whitmore, supra,
at 158 (internal quotation marks omitted); see also Daim-
lerChrysler Corp., supra, at 345; Laidlaw, supra, at 190;
Defenders of Wildlife, supra, at 565, n. 2; Babbitt, supra, at
298. Furthermore, respondents’ argument rests on their
highly speculative fear that: (1) the Government will
decide to target the communications of non-U. S. persons
with whom they communicate; (2) in doing so, the Gov-
ernment will choose to invoke its authority under §1881a
rather than utilizing another method of surveillance;
(3) the Article III judges who serve on the Foreign Intelli-
gence Surveillance Court will conclude that the Govern-
ment’s proposed surveillance procedures satisfy §1881a’s
many safeguards and are consistent with the Fourth
Amendment; (4) the Government will succeed in inter-
cepting the communications of respondents’ contacts; and
(5) respondents will be parties to the particular communi-
cations that the Government intercepts. As discussed
below, respondents’ theory of standing, which relies on a
highly attenuated chain of possibilities, does not satisfy
the requirement that threatened injury must be certainly
impending. See Summers, supra, at 496 (rejecting a
standing theory premised on a speculative chain of possi-
bilities); Whitmore, supra, at 157–160 (same). Moreover,
even if respondents could demonstrate injury in fact, the
second link in the above-described chain of contingen-
cies—which amounts to mere speculation about whether
surveillance would be under §1881a or some other author-
ity—shows that respondents cannot satisfy the require-
ment that any injury in fact must be fairly traceable to
§1881a.
First, it is speculative whether the Government will
imminently target communications to which respondents
are parties. Section 1881a expressly provides that re-
spondents, who are U. S. persons, cannot be targeted for
12 CLAPPER v. AMNESTY INTERNATIONAL USA
Opinion of the Court
surveillance under §1881a. See §§1881a(b)(1)–(3); 667
F. 3d, at 173 (Raggi, J., dissenting from denial of rehear-
ing en banc). Accordingly, it is no surprise that respond-
ents fail to offer any evidence that their communications
have been monitored under §1881a, a failure that sub-
stantially undermines their standing theory. See ACLU,
493 F. 3d, at 655–656, 673–674 (opinion of Batchelder, J.)
(concluding that plaintiffs who lacked evidence that their
communications had been intercepted did not have stand-
ing to challenge alleged NSA surveillance). Indeed, re-
spondents do not even allege that the Government has
sought the FISC’s approval for surveillance of their com-
munications. Accordingly, respondents’ theory necessarily
rests on their assertion that the Government will target
other individuals—namely, their foreign contacts.
Yet respondents have no actual knowledge of the
Government’s §1881a targeting practices. Instead, re-
spondents merely speculate and make assumptions about
whether their communications with their foreign contacts
will be acquired under §1881a. See 667 F. 3d, at 185–187
(opinion of Raggi, J.). For example, journalist Christopher
Hedges states: “I have no choice but to assume that any of
my international communications may be subject to gov-
ernment surveillance, and I have to make decisions . . . in
light of that assumption.” App. to Pet. for Cert. 366a
(emphasis added and deleted). Similarly, attorney Scott
McKay asserts that, “[b]ecause of the [FISA Amendments
Act], we now have to assume that every one of our interna-
tional communications may be monitored by the govern-
ment.” Id., at 375a (emphasis added); see also id., at 337a,
343a–344a, 350a, 356a. “The party invoking federal juris-
diction bears the burden of establishing” standing—and,
at the summary judgment stage, such a party “can no
longer rest on . . . ‘mere allegations,’ but must ‘set forth’ by
affidavit or other evidence ‘specific facts.’ ” Defenders of
Wildlife, 504 U. S., at 561. Respondents, however, have
Cite as: 568 U. S. ____ (2013) 13
Opinion of the Court
set forth no specific facts demonstrating that the commu-
nications of their foreign contacts will be targeted. More-
over, because §1881a at most authorizes—but does not
mandate or direct—the surveillance that respondents fear,
respondents’ allegations are necessarily conjectural. See
United Presbyterian Church in U. S. A. v. Reagan, 738
F. 2d 1375, 1380 (CADC 1984) (Scalia, J.); 667 F. 3d, at
187 (opinion of Raggi, J.). Simply put, respondents can
only speculate as to how the Attorney General and the
Director of National Intelligence will exercise their discre-
tion in determining which communications to target.4
Second, even if respondents could demonstrate that the
targeting of their foreign contacts is imminent, respond-
ents can only speculate as to whether the Government will
seek to use §1881a-authorized surveillance (rather than
other methods) to do so. The Government has numerous
other methods of conducting surveillance, none of which is
challenged here. Even after the enactment of the FISA
Amendments Act, for example, the Government may still
conduct electronic surveillance of persons abroad under
the older provisions of FISA so long as it satisfies the
——————
4 It was suggested at oral argument that the Government could help
resolve the standing inquiry by disclosing to a court, perhaps through
an in camera proceeding, (1) whether it is intercepting respondents’
communications and (2) what targeting or minimization procedures it
is using. See Tr. of Oral Arg. 13–14, 44, 56. This suggestion is puz-
zling. As an initial matter, it is respondents’ burden to prove their
standing by pointing to specific facts, Lujan v. Defenders of Wildlife,
504 U. S. 555, 561 (1992), not the Government’s burden to disprove
standing by revealing details of its surveillance priorities. Moreover,
this type of hypothetical disclosure proceeding would allow a terrorist
(or his attorney) to determine whether he is currently under U. S.
surveillance simply by filing a lawsuit challenging the Government’s
surveillance program. Even if the terrorist’s attorney were to comply
with a protective order prohibiting him from sharing the Government’s
disclosures with his client, the court’s postdisclosure decision about
whether to dismiss the suit for lack of standing would surely signal to
the terrorist whether his name was on the list of surveillance targets.
14 CLAPPER v. AMNESTY INTERNATIONAL USA
Opinion of the Court
applicable requirements, including a demonstration of
probable cause to believe that the person is a foreign
power or agent of a foreign power. See §1805. The Gov-
ernment may also obtain information from the intelligence
services of foreign nations. Brief for Petitioners 33. And,
although we do not reach the question, the Government
contends that it can conduct FISA-exempt human and
technical surveillance programs that are governed by
Executive Order 12333. See Exec. Order No. 12333, §§1.4,
2.1–2.5, 3 CFR 202, 210–212 (1981), reprinted as amended,
note following 50 U. S. C. §401, pp. 543, 547–548. Even
if respondents could demonstrate that their foreign
contacts will imminently be targeted—indeed, even if they
could show that interception of their own communications
will imminently occur—they would still need to show
that their injury is fairly traceable to §1881a. But, be-
cause respondents can only speculate as to whether any
(asserted) interception would be under §1881a or some
other authority, they cannot satisfy the “fairly traceable”
requirement.
Third, even if respondents could show that the Govern-
ment will seek the Foreign Intelligence Surveillance
Court’s authorization to acquire the communications of
respondents’ foreign contacts under §1881a, respondents
can only speculate as to whether that court will authorize
such surveillance. In the past, we have been reluctant to
endorse standing theories that require guesswork as to
how independent decisionmakers will exercise their judg-
ment. In Whitmore, for example, the plaintiff ’s theory of
standing hinged largely on the probability that he would
obtain federal habeas relief and be convicted upon retrial.
In holding that the plaintiff lacked standing, we explained
that “[i]t is just not possible for a litigant to prove in ad-
vance that the judicial system will lead to any particular
result in his case.” 495 U. S., at 159–160; see Defenders of
Wildlife, 504 U. S., at 562.
Cite as: 568 U. S. ____ (2013) 15
Opinion of the Court
We decline to abandon our usual reluctance to endorse
standing theories that rest on speculation about the deci-
sions of independent actors. Section 1881a mandates that
the Government must obtain the Foreign Intelligence
Surveillance Court’s approval of targeting procedures,
minimization procedures, and a governmental certification
regarding proposed surveillance. §§1881a(a), (c)(1), (i)(2),
(i)(3). The Court must, for example, determine whether
the Government’s procedures are “reasonably designed . . .
to minimize the acquisition and retention, and prohibit the
dissemination, of nonpublicly available information con-
cerning unconsenting United States persons.” §1801(h);
see §§1881a(i)(2), (i)(3)(A). And, critically, the Court must
also assess whether the Government’s targeting and
minimization procedures comport with the Fourth Amend-
ment. §1881a(i)(3)(A).
Fourth, even if the Government were to obtain the
Foreign Intelligence Surveillance Court’s approval to tar-
get respondents’ foreign contacts under §1881a, it is
unclear whether the Government would succeed in acquir-
ing the communications of respondents’ foreign contacts.
And fifth, even if the Government were to conduct surveil-
lance of respondents’ foreign contacts, respondents can
only speculate as to whether their own communications
with their foreign contacts would be incidentally acquired.
In sum, respondents’ speculative chain of possibilities
does not establish that injury based on potential future
surveillance is certainly impending or is fairly traceable to
§1881a.5
——————
5 Our cases do not uniformly require plaintiffs to demonstrate that it
is literally certain that the harms they identify will come about. In
some instances, we have found standing based on a “substantial risk”
that the harm will occur, which may prompt plaintiffs to reasonably
incur costs to mitigate or avoid that harm. Monsanto Co. v. Geertson
Seed Farms, 561 U. S. ___, ___ (2010) (slip op., at 11–12). See also
Pennell v. City of San Jose, 485 U. S. 1, 8 (1988); Blum v. Yaretsky, 457
16 CLAPPER v. AMNESTY INTERNATIONAL USA
Opinion of the Court
B
Respondents’ alternative argument—namely, that they
can establish standing based on the measures that they
have undertaken to avoid §1881a-authorized surveil-
lance—fares no better. Respondents assert that they are
suffering ongoing injuries that are fairly traceable to
§1881a because the risk of surveillance under §1881a
requires them to take costly and burdensome measures to
protect the confidentiality of their communications. Re-
spondents claim, for instance, that the threat of surveil-
lance sometimes compels them to avoid certain e-mail and
phone conversations, to “tal[k] in generalities rather than
specifics,” or to travel so that they can have in-person
conversations. Tr. of Oral Arg. 38; App. to Pet. for Cert.
338a, 345a, 367a, 400a.6 The Second Circuit panel con-
cluded that, because respondents are already suffering
such ongoing injuries, the likelihood of interception under
§1881a is relevant only to the question whether respond-
ents’ ongoing injuries are “fairly traceable” to §1881a. See
——————
U. S. 991, 1000–1001 (1982); Babbitt v. Farm Workers, 442 U. S. 289,
298 (1979). But to the extent that the “substantial risk” standard is
relevant and is distinct from the “clearly impending” requirement,
respondents fall short of even that standard, in light of the attenuated
chain of inferences necessary to find harm here. See supra, at 11–15.
In addition, plaintiffs bear the burden of pleading and proving concrete
facts showing that the defendant’s actual action has caused the sub-
stantial risk of harm. Plaintiffs cannot rely on speculation about “ ‘the
unfettered choices made by independent actors not before the court.’ ”
Defenders of Wildlife, 504 U. S., at 562.
6 For all the focus on respondents’ supposed need to travel abroad in
light of potential §1881a surveillance, respondents cite only one specific
instance of travel: an attorney’s trip to New York City to meet with
other lawyers. See App. to Pet. for Cert. 352a. This domestic travel
had but a tenuous connection to §1881a, because §1881a-authorized
acquisitions “may not intentionally target any person known at the
time of acquisition to be located in the United States.” §1881a(b)(1); see
also 667 F. 3d 163, 202 (CA2 2011) (Jacobs, C. J., dissenting from
denial of rehearing en banc); id., at 185 (opinion of Raggi, J. (same)).
Cite as: 568 U. S. ____ (2013) 17
Opinion of the Court
638 F. 3d, at 133–134; 667 F. 3d, at 180 (opinion of Raggi,
J.). Analyzing the “fairly traceable” element of standing
under a relaxed reasonableness standard, see 638 F. 3d, at
133–134, the Second Circuit then held that “plaintiffs
have established that they suffered present injuries in
fact—economic and professional harms—stemming from a
reasonable fear of future harmful government conduct,”
id., at 138.
The Second Circuit’s analysis improperly allowed re-
spondents to establish standing by asserting that they
suffer present costs and burdens that are based on a fear
of surveillance, so long as that fear is not “fanciful, para-
noid, or otherwise unreasonable.” See id., at 134. This
improperly waters down the fundamental requirements of
Article III. Respondents’ contention that they have stand-
ing because they incurred certain costs as a reasonable
reaction to a risk of harm is unavailing—because the harm
respondents seek to avoid is not certainly impending. 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. See Pennsylvania v. New Jersey, 426 U. S.
660, 664 (1976) (per curiam); National Family Planning &
Reproductive Health Assn., Inc., 468 F. 3d 826, 831 (CADC
2006). Any ongoing injuries that respondents are suffer-
ing are not fairly traceable to §1881a.
If the law were otherwise, an enterprising plaintiff
would be able to secure a lower standard for Article III
standing simply by making an expenditure based on a
nonparanoid fear. As Judge Raggi accurately noted, under
the Second Circuit panel’s reasoning, respondents could,
“for the price of a plane ticket, . . . transform their stand-
ing burden from one requiring a showing of actual or
imminent . . . interception to one requiring a showing that
their subjective fear of such interception is not fanciful,
irrational, or clearly unreasonable.” 667 F. 3d, at 180
18 CLAPPER v. AMNESTY INTERNATIONAL USA
Opinion of the Court
(internal quotation marks omitted). Thus, allowing re-
spondents to bring this action based on costs they incurred
in response to a speculative threat would be tantamount
to accepting a repackaged version of respondents’ first
failed theory of standing. See ACLU, 493 F. 3d, at 656–
657 (opinion of Batchelder, J.).
Another reason that respondents’ present injuries are
not fairly traceable to §1881a is that even before §1881a
was enacted, they had a similar incentive to engage in
many of the countermeasures that they are now taking.
See id., at 668–670. For instance, respondent Scott
McKay’s declaration describes—and the dissent heavily
relies on—Mr. McKay’s “knowledge” that thousands of
communications involving one of his clients were moni-
tored in the past. App. to Pet. for Cert. 370a; post, at 4,
7–8. But this surveillance was conducted pursuant to FISA
authority that predated §1881a. See Brief for Petitioners
32, n. 11; Al-Kidd v. Gonzales, No. 05–cv–93, 2008 WL
5123009 (D Idaho, Dec. 4, 2008). Thus, because the Gov-
ernment was allegedly conducting surveillance of Mr.
McKay’s client before Congress enacted §1881a, it is diffi-
cult to see how the safeguards that Mr. McKay now claims
to have implemented can be traced to §1881a.
Because respondents do not face a threat of certainly
impending interception under §1881a, the costs that they
have incurred to avoid surveillance are simply the product
of their fear of surveillance,7 and our decision in Laird
——————
7 Although respondents’ alternative theory of standing rests primarily
on choices that they have made based on their subjective fear of surveil-
lance, respondents also assert that third parties might be disinclined to
speak with them due to a fear of surveillance. See App. to Pet. for Cert.
372a–373a, 352a–353a. To the extent that such assertions are based on
anything other than conjecture, see Defenders of Wildlife, 504 U. S., at
560, they do not establish injury that is fairly traceable to §1881a,
because they are based on third parties’ subjective fear of surveillance,
see Laird, 408 U. S., at 10–14.
Cite as: 568 U. S. ____ (2013) 19
Opinion of the Court
makes it clear that such a fear is insufficient to create
standing. See 408 U. S., at 10–15. The plaintiffs in Laird
argued that their exercise of First Amendment rights was
being “chilled by the mere existence, without more, of [the
Army’s] investigative and data-gathering activity.” Id., at
10. While acknowledging that prior cases had held that
constitutional violations may arise from the chilling
effect of “regulations that fall short of a direct prohibi-
tion against the exercise of First Amendment rights,” the
Court declared that none of those cases involved a
“chilling effect aris[ing] merely from the individual’s
knowledge that a governmental agency was engaged in
certain activities or from the individual’s concomitant fear
that, armed with the fruits of those activities, the agency
might in the future take some other and additional action
detrimental to that individual.” Id., at 11. Because
“[a]llegations of a subjective ‘chill’ are not an adequate
substitute for a claim of specific present objective harm or
a threat of specific future harm,” id., at 13–14, the plain-
tiffs in Laird—and respondents here—lack standing. See
ibid.; ACLU, supra, at 661–662 (opinion of Batchelder, J.)
(holding that plaintiffs lacked standing because they
“allege[d] only a subjective apprehension” of alleged NSA
surveillance and “a personal (self-imposed) unwillingness
to communicate”); United Presbyterian Church, 738 F. 2d,
at 1378 (holding that plaintiffs lacked standing to chal-
lenge the legality of an Executive Order relating to sur-
veillance because “the ‘chilling effect’ which is produced by
their fear of being subjected to illegal surveillance and
which deters them from conducting constitutionally pro-
tected activities, is foreclosed as a basis for standing” by
Laird).
For the reasons discussed above, respondents’ self-
inflicted injuries are not fairly traceable to the Govern-
ment’s purported activities under §1881a, and their
subjective fear of surveillance does not give rise to standing.
20 CLAPPER v. AMNESTY INTERNATIONAL USA
Opinion of the Court
IV
A
Respondents incorrectly maintain that “[t]he kinds of
injuries incurred here—injuries incurred because of [re-
spondents’] reasonable efforts to avoid greater injuries
that are otherwise likely to flow from the conduct they
challenge—are the same kinds of injuries that this Court
held to support standing in cases such as” Laidlaw, Meese
v. Keene, 481 U. S. 465 (1987), and Monsanto. Brief for
Respondents 24. As an initial matter, none of these cases
holds or even suggests that plaintiffs can establish stand-
ing simply by claiming that they experienced a “chilling
effect” that resulted from a governmental policy that does
not regulate, constrain, or compel any action on their part.
Moreover, each of these cases was very different from the
present case.
In Laidlaw, plaintiffs’ standing was based on “the prop-
osition that a company’s continuous and pervasive illegal
discharges of pollutants into a river would cause nearby
residents to curtail their recreational use of that waterway
and would subject them to other economic and aesthetic
harms.” 528 U. S., at 184. Because the unlawful dis-
charges of pollutants were “concededly ongoing,” the only
issue was whether “nearby residents”—who were mem-
bers of the organizational plaintiffs—acted reasonably in
refraining from using the polluted area. Id., at 183–184.
Laidlaw is therefore quite unlike the present case, in
which it is not “concede[d]” that respondents would be
subject to unlawful surveillance but for their decision to
take preventive measures. See ACLU, 493 F. 3d, at 686(opinion of Batchelder, J.) (distinguishing Laidlaw on this
ground); id., at 689–690 (Gibbons, J., concurring) (same);
667 F. 3d, at 182–183 (opinion of Raggi, J.) (same).
Laidlaw would resemble this case only if (1) it were
undisputed that the Government was using §1881a-
authorized surveillance to acquire respondents’ communi-
Cite as: 568 U. S. ____ (2013) 21
Opinion of the Court
cations and (2) the sole dispute concerned the reasonable-
ness of respondents’ preventive measures.
In Keene, the plaintiff challenged the constitutionality of
the Government’s decision to label three films as “political
propaganda.” 481 U. S., at 467. The Court held that the
plaintiff, who was an attorney and a state legislator, had
standing because he demonstrated, through “detailed
affidavits,” that he “could not exhibit the films without
incurring a risk of injury to his reputation and of an im-
pairment of his political career.” Id., at 467, 473–475.
Unlike the present case, Keene involved “more than a
‘subjective chill’ ” based on speculation about potential
governmental action; the plaintiff in that case was un-
questionably regulated by the relevant statute, and the
films that he wished to exhibit had already been labeled
as “political propaganda.” See ibid.; ACLU, 493 F. 3d, at663–664 (opinion of Batchelder, J.); id., at 691 (Gibbons,
J., concurring).
Monsanto, on which respondents also rely, is likewise
inapposite. In Monsanto, conventional alfalfa farmers had
standing to seek injunctive relief because the agency’s
decision to deregulate a variety of genetically engineered
alfalfa gave rise to a “significant risk of gene flow to
non-genetically-engineered varieties of alfalfa.” 561 U. S., at
___ (slip op., at 13). The standing analysis in that case
hinged on evidence that genetically engineered alfalfa
“ ‘seed fields [we]re currently being planted in all the
major alfalfa seed production areas’ ”; the bees that polli-
nate alfalfa “ ‘have a range of at least two to ten miles’ ”;
and the alfalfa seed farms were concentrated in an area
well within the bees’ pollination range. Id., at ___–___,
and n. 3 (slip op., at 11–12, and n. 3). Unlike the conven-
tional alfalfa farmers in Monsanto, however, respondents
in the present case present no concrete evidence to sub-
stantiate their fears, but instead rest on mere conjecture
about possible governmental actions.
22 CLAPPER v. AMNESTY INTERNATIONAL USA
Opinion of the Court
B
Respondents also suggest that they should be held to
have standing because otherwise the constitutionality
of §1881a could not be challenged. It would be wrong,
they maintain, to “insulate the government’s surveillance
activities from meaningful judicial review.” Brief for
Respondents 60. Respondents’ suggestion is both legally
and factually incorrect. First, “ ‘[t]he assumption that if
respondents have no standing to sue, no one would have
standing, is not a reason to find standing.’ ” Valley Forge
Christian College, 454 U. S., at 489; Schlesinger, 418 U. S.,
at 227; see also Richardson, 418 U. S., at 179; Raines, 521
U. S., at 835 (Souter, J., joined by GINSBURG, J., concur-
ring in judgment).
Second, our holding today by no means insulates §1881a
from judicial review. As described above, Congress
created a comprehensive scheme in which the Foreign
Intelligence Surveillance Court evaluates the Government’s
certifications, targeting procedures, and minimization
procedures—including assessing whether the targeting
and minimization procedures comport with the Fourth
Amendment. §§1881a(a), (c)(1), (i)(2), (i)(3). Any dissatis-
faction that respondents may have about the Foreign
Intelligence Surveillance Court’s rulings—or the congres-
sional delineation of that court’s role—is irrelevant to our
standing analysis.
Additionally, if the Government intends to use or dis-
close information obtained or derived from a §1881a ac-
quisition in judicial or administrative proceedings, it
must provide advance notice of its intent, and the affected
person may challenge the lawfulness of the acquisition.
§§1806(c), 1806(e), 1881e(a) (2006 ed. and Supp. V).8
——————
8 The possibility of judicial review in this context is not farfetched. In
United States v. Damrah, 412 F. 3d 618 (CA6 2005), for example, the
Government made a pretrial disclosure that it intended to use FISA
Cite as: 568 U. S. ____ (2013) 23
Opinion of the Court
Thus, if the Government were to prosecute one of
respondent-attorney’s foreign clients using §1881a-authorized
surveillance, the Government would be required to make a
disclosure. Although the foreign client might not have a
viable Fourth Amendment claim, see, e.g., United States v.
Verdugo-Urquidez, 494 U. S. 259, 261 (1990), it is possible
that the monitoring of the target’s conversations with his
or her attorney would provide grounds for a claim of
standing on the part of the attorney. Such an attorney
would certainly have a stronger evidentiary basis for
establishing standing than do respondents in the present
case. In such a situation, unlike in the present case,
it would at least be clear that the Government had ac-
quired the foreign client’s communications using §1881a-
authorized surveillance.
Finally, any electronic communications service provider
that the Government directs to assist in §1881a surveil-
lance may challenge the lawfulness of that directive before
the FISC. §§1881a(h)(4), (6). Indeed, at the behest of a
service provider, the Foreign Intelligence Surveillance
Court of Review previously analyzed the constitutionality
of electronic surveillance directives issued pursuant to a
now-expired set of FISA amendments. See In re Directives
Pursuant to Section 105B of Foreign Intelligence Surveil-
lance Act, 551 F. 3d 1004, 1006–1016 (2008) (holding that
the provider had standing and that the directives were
constitutional).
* * *
We hold that respondents lack Article III standing
because they cannot demonstrate that the future injury
——————
evidence in a prosecution; the defendant (unsuccessfully) moved to
suppress the FISA evidence, even though he had not been the target of
the surveillance; and the Sixth Circuit ultimately held that FISA’s
procedures are consistent with the Fourth Amendment. See id., at 622,
623, 625.
24 CLAPPER v. AMNESTY INTERNATIONAL USA
Opinion of the Court
they purportedly fear is certainly impending and because
they cannot manufacture standing by incurring costs in
anticipation of non-imminent harm. We therefore reverse
the judgment of the Second Circuit and remand the case
for further proceedings consistent with this opinion.
It is so ordered.
Cite as: 568 U. S. ____ (2013) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–1025
_________________
JAMES R. CLAPPER, JR., DIRECTOR OF NATIONAL
INTELLIGENCE, ET AL., PETITIONERS v.
AMNESTY INTERNATIONAL USA ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[February 26, 2013]
JUSTICE BREYER, with whom JUSTICE GINSBURG,
JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
The plaintiffs’ standing depends upon the likelihood
that the Government, acting under the authority of 50
U. S. C. §1881a (2006 ed., Supp. V), will harm them by
intercepting at least some of their private, foreign, tele­
phone, or e-mail conversations. In my view, this harm is
not “speculative.” Indeed it is as likely to take place as are
most future events that commonsense inference and ordi­
nary knowledge of human nature tell us will happen. This
Court has often found the occurrence of similar future
events sufficiently certain to support standing. I dissent
from the Court’s contrary conclusion.
I
Article III specifies that the “judicial Power” of the
United States extends only to actual “Cases” and “Contro­
versies.” §2. It thereby helps to ensure that the legal
questions presented to the federal courts will not take the
form of abstract intellectual problems resolved in the
“rarified atmosphere of a debating society” but instead
those questions will be presented “in a concrete factual
context conducive to a realistic appreciation of the conse­
quences of judicial action.” Valley Forge Christian College
2 CLAPPER v. AMNESTY INTERNATIONAL USA
BREYER, J., dissenting
v. Americans United for Separation of Church and State,
Inc., 454 U. S. 464, 472 (1982) (purpose of Article III);
Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992)
(similar); Babbitt v. Farm Workers, 442 U. S. 289, 297
(1979) (similar).
The Court has recognized that the precise boundaries of
the “case or controversy” requirement are matters of “de­
gree . . . not discernible by any precise test.” Ibid. At the
same time, the Court has developed a subsidiary set of
legal rules that help to determine when the Constitution’s
requirement is met. See Lujan, 504 U. S., at 560–561; id.,
at 583 (Stevens, J., concurring in judgment). Thus, a
plaintiff must have “standing” to bring a legal claim. And
a plaintiff has that standing, the Court has said, only if
the action or omission that the plaintiff challenges has
caused, or will cause, the plaintiff to suffer an injury that
is “concrete and particularized,” “actual or imminent,” and
“redress[able] by a favorable decision.” Id., at 560–561
(internal quotation marks omitted).
No one here denies that the Government’s interception
of a private telephone or e-mail conversation amounts to
an injury that is “concrete and particularized.” Moreover,
the plaintiffs, respondents here, seek as relief a judgment
declaring unconstitutional (and enjoining enforcement of)
a statutory provision authorizing those interceptions; and,
such a judgment would redress the injury by preventing it.
Thus, the basic question is whether the injury, i.e., the
interception, is “actual or imminent.”
II
A
Since the plaintiffs fear interceptions of a kind author­
ized by §1881a, it is important to understand just what
kind of surveillance that section authorizes. Congress
enacted §1881a in 2008, as an amendment to the pre­
existing Foreign Intelligence Surveillance Act of 1978, 50
Cite as: 568 U. S. ____ (2013) 3
BREYER, J., dissenting
U. S. C. §1801 et seq. Before the amendment, the Act
authorized the Government (acting within the United
States) to monitor private electronic communications
between the United States and a foreign country if (1) the
Government’s purpose was, in significant part, to obtain
foreign intelligence information (which includes infor­
mation concerning a “foreign power” or “territory” related
to our “national defense” or “security” or the “conduct of
. . . foreign affairs”), (2) the Government’s surveillance
target was “a foreign power or an agent of a foreign
power,” and (3) the Government used surveillance proce­
dures designed to “minimize the acquisition and retention, and
prohibit the dissemination, of ” any private information
acquired about Americans. §§1801(e), (h), 1804(a).
In addition the Government had to obtain the approval
of the Foreign Intelligence Surveillance Court. To do so, it
had to submit an application describing (1) each “specific
target,” (2) the “nature of the information sought,” and (3)
the “type of communications or activities to be subjected
to the surveillance.” §1804(a). It had to certify that, in
significant part, it sought to obtain foreign intelligence
information. Ibid. It had to demonstrate probable cause
to believe that each specific target was “a foreign power or
an agent of a foreign power.” §§1804(a), 1805(a). It also
had to describe instance-specific procedures to be used
to minimize intrusions upon Americans’ privacy (compli­
ance with which the court subsequently could assess).
§§1804(a), 1805(d)(3).
The addition of §1881a in 2008 changed this prior law in
three important ways. First, it eliminated the require­
ment that the Government describe to the court each
specific target and identify each facility at which its sur­
veillance would be directed, thus permitting surveillance
on a programmatic, not necessarily individualized, basis.
§1881a(g). Second, it eliminated the requirement that a
target be a “foreign power or an agent of a foreign power.”
4 CLAPPER v. AMNESTY INTERNATIONAL USA
BREYER, J., dissenting
Ibid. Third, it diminished the court’s authority to
insist upon, and eliminated its authority to supervise,
instance-specific privacy-intrusion minimization procedures
(though the Government still must use court-approved
general minimization procedures). §1881a(e). Thus, using
the authority of §1881a, the Government can obtain court
approval for its surveillance of electronic communications
between places within the United States and targets in
foreign territories by showing the court (1) that “a sig­
nificant purpose of the acquisition is to obtain foreign
intelligence information,” and (2) that it will use general
targeting and privacy-intrusion minimization procedures of
a kind that the court had previously approved. §1881a(g).
B
It is similarly important to understand the kinds of
communications in which the plaintiffs say they engage
and which they believe the Government will intercept.
Plaintiff Scott McKay, for example, says in an affidavit (1)
that he is a lawyer; (2) that he represented “Mr. Sami
Omar Al-Hussayen, who was acquitted in June 2004 on
terrorism charges”; (3) that he continues to represent “Mr.
Al-Hussayen, who, in addition to facing criminal charges
after September 11, was named as a defendant in several
civil cases”; (4) that he represents Khalid Sheik Moham­
med, a detainee, “before the Military Commissions at
Guantánamo Bay, Cuba”; (5) that in representing these
clients he “communicate[s] by telephone and email with
people outside the United States, including Mr. Al-
Hussayen himself,” “experts, investigators, attorneys,
family members . . . and others who are located abroad”;
and (6) that prior to 2008 “the U. S. government had
intercepted some 10,000 telephone calls and 20,000 email
communications involving [his client] Al-Hussayen.” App.
to Pet. for Cert. 369a–371a.
Another plaintiff, Sylvia Royce, says in her affidavit (1)
Cite as: 568 U. S. ____ (2013) 5
BREYER, J., dissenting
that she is an attorney; (2) that she “represent[s] Mo­
hammedou Ould Salahi, a prisoner who has been held at
Guantánamo Bay as an enemy combatant”; (3) that, “[i]n
connection with [her] representation of Mr. Salahi, [she]
receive[s] calls from time to time from Mr. Salahi’s
brother, . . . a university student in Germany”; and (4)
that she has been told that the Government has threatened
Salahi “that his family members would be arrested and mis­
treated if he did not cooperate.” Id., at 349a–351a.
The plaintiffs have noted that McKay no longer repre­
sents Mohammed and Royce no longer represents Ould
Salahi. Brief for Respondents 15, n. 11. But these changes
are irrelevant, for we assess standing as of the time a
suit is filed, see Davis v. Federal Election Comm’n, 554
U. S. 724, 734 (2008), and in any event McKay himself
continues to represent Al Hussayen, his partner now
represents Mohammed, and Royce continues to represent
individuals held in the custody of the U. S. military
overseas.
A third plaintiff, Joanne Mariner, says in her affidavit
(1) that she is a human rights researcher, (2) that “some of
the work [she] do[es] involves trying to track down people
who were rendered by the CIA to countries in which they
were tortured”; (3) that many of those people “the CIA has
said are (or were) associated with terrorist organizations”;
and (4) that, to do this research, she “communicate[s] by
telephone and e-mail with . . . former detainees, lawyers
for detainees, relatives of detainees, political activists,
journalists, and fixers” “all over the world, including in
Jordan, Egypt, Pakistan, Afghanistan, [and] the Gaza
Strip.” App. to Pet. for Cert. 343a–344a.
Other plaintiffs, including lawyers, journalists, and
human rights researchers, say in affidavits (1) that they
have jobs that require them to gather information from
foreigners located abroad; (2) that they regularly com­
municate electronically (e.g., by telephone or e-mail) with
6 CLAPPER v. AMNESTY INTERNATIONAL USA
BREYER, J., dissenting
foreigners located abroad; and (3) that in these communi­
cations they exchange “foreign intelligence information” as
the Act defines it. Id., at 334a–375a.
III
Several considerations, based upon the record along
with commonsense inferences, convince me that there is a
very high likelihood that Government, acting under the
authority of §1881a, will intercept at least some of the
communications just described. First, the plaintiffs have
engaged, and continue to engage, in electronic communica­
tions of a kind that the 2008 amendment, but not the prior
Act, authorizes the Government to intercept. These com­
munications include discussions with family members of
those detained at Guantanamo, friends and acquaintances
of those persons, and investigators, experts and others
with knowledge of circumstances related to terrorist activ­
ities. These persons are foreigners located outside the
United States. They are not “foreign power[s]” or “agent[s]
of . . . foreign power[s].” And the plaintiffs state that they
exchange with these persons “foreign intelligence infor­
mation,” defined to include information that “relates to”
“international terrorism” and “the national defense or the
security of the United States.” See 50 U. S. C. §1801 (2006
ed. and Supp. V); see, e.g., App. to Pet. for Cert. 342a,
366a, 373a–374a.
Second, the plaintiffs have a strong motive to engage in,
and the Government has a strong motive to listen to,
conversations of the kind described. A lawyer represent­
ing a client normally seeks to learn the circumstances
surrounding the crime (or the civil wrong) of which the
client is accused. A fair reading of the affidavit of Scott
McKay, for example, taken together with elementary
considerations of a lawyer’s obligation to his client, indi­
cates that McKay will engage in conversations that con­
cern what suspected foreign terrorists, such as his client,
Cite as: 568 U. S. ____ (2013) 7
BREYER, J., dissenting
have done; in conversations that concern his clients’ fami­
lies, colleagues, and contacts; in conversations that con­
cern what those persons (or those connected to them) have
said and done, at least in relation to terrorist activities; in
conversations that concern the political, social, and com­
mercial environments in which the suspected terrorists
have lived and worked; and so forth. See, e.g., id., at
373a–374a. Journalists and human rights workers have
strong similar motives to conduct conversations of this
kind. See, e.g., id., at 342a (Declaration of Joanne Mari­
ner, stating that “some of the information [she] ex­
change[s] by telephone and e-mail relates to terrorism and
counterterrorism, and much of the information relates to
the foreign affairs of the United States”).
At the same time, the Government has a strong motive
to conduct surveillance of conversations that contain
material of this kind. The Government, after all, seeks to
learn as much as it can reasonably learn about suspected
terrorists (such as those detained at Guantanamo), as well
as about their contacts and activities, along with those of
friends and family members. See Executive Office of the
President, Office of Management and Budget, Statement
of Administration Policy on S. 2248, p. 4 (Dec. 17, 2007)
(“Part of the value of the [new authority] is to enable the
Intelligence Community to collect expeditiously the com­
munications of terrorists in foreign countries who may
contact an associate in the United States”). And the Gov­
ernment is motivated to do so, not simply by the desire to
help convict those whom the Government believes guilty,
but also by the critical, overriding need to protect America
from terrorism. See id., at 1 (“Protection of the American
people and American interests at home and abroad re­
quires access to timely, accurate, and insightful intelli­
gence on the capabilities, intentions, and activities of . . .
terrorists”).
Third, the Government’s past behavior shows that it has
8 CLAPPER v. AMNESTY INTERNATIONAL USA
BREYER, J., dissenting
sought, and hence will in all likelihood continue to seek,
information about alleged terrorists and detainees
through means that include surveillance of electronic
communications. As just pointed out, plaintiff Scott
McKay states that the Government (under the authority of
the pre-2008 law) “intercepted some 10,000 telephone calls
and 20,000 email communications involving [his client]
Mr. Al-Hussayen.” App. to Pet. for Cert. 370a.
Fourth, the Government has the capacity to conduct
electronic surveillance of the kind at issue. To some de­
gree this capacity rests upon technology available to the
Government. See 1 D. Kris & J. Wilson, National Security
Investigations & Prosecutions §16:6, p. 562 (2d ed. 2012)
(“NSA’s technological abilities are legendary”); id., §16:12,
at 572–577 (describing the National Security Agency’s
capacity to monitor “very broad facilities” such as interna­
tional switches). See, e.g., Lichtblau & Risen, Spy Agency
Mined Vast Data Trove, Officials Report, N. Y. Times, Dec.
24, 2005, p. A1 (describing capacity to trace and to analyze
large volumes of communications into and out of the
United States); Lichtblau & Shane, Bush is Pressed Over New
Report on Surveillance, N. Y. Times, May 12, 2006, p. A1
(reporting capacity to obtain access to records of many, if
not most, telephone calls made in the United States);
Priest & Arkin, A Hidden World, Growing Beyond Control,
Washington Post, July 19, 2010, p. A1 (reporting that
every day, collection systems at the National Security
Agency intercept and store 1.7 billion e-mails, telephone
calls and other types of communications). Cf. Statement
of Administration Policy on S. 2248, supra, at 3 (rejecting
a provision of the Senate bill that would require intelli­
gence analysts to count “the number of persons located in
the United States whose communications were reviewed”
as “impossible to implement” (internal quotation marks
omitted)). This capacity also includes the Government’s
authority to obtain the kind of information here at issue
Cite as: 568 U. S. ____ (2013) 9
BREYER, J., dissenting
from private carriers such as AT&T and Verizon. See 50
U. S. C. §1881a(h). We are further told by amici that the
Government is expanding that capacity. See Brief for
Electronic Privacy Information Center et al. as 22–23
(National Security Agency will be able to conduct surveil­
lance of most electronic communications between domestic
and foreign points).
Of course, to exercise this capacity the Government
must have intelligence court authorization. But the Gov­
ernment rarely files requests that fail to meet the statu­
tory criteria. See Letter from Ronald Weich, Assistant
Attorney General, to Joseph R. Biden, Jr., 1 (Apr. 30,
2012) (In 2011, of the 1,676 applications to the intelligence
court, two were withdrawn by the Government, and the
remaining 1,674 were approved, 30 with some mod­
ification), online at http://www.justice.gov/nsd/foia/
foia_library/2011fisa-ltr.pdf. (as visited Feb. 22, 2013, and
available in Clerk of Court’s case file). As the intelligence
court itself has stated, its review under §1881a is “nar­
rowly circumscribed.” In re Proceedings Required by §702(i)
of the FISA Amendments Act of 2008, No. Misc. 08–01
(Aug. 17, 2008), p. 3. There is no reason to believe that
the communications described would all fail to meet the
conditions necessary for approval. Moreover, compared
with prior law, §1881a simplifies and thus expedites the
approval process, making it more likely that the Govern­
ment will use §1881a to obtain the necessary approval.
The upshot is that (1) similarity of content, (2) strong
motives, (3) prior behavior, and (4) capacity all point to a
very strong likelihood that the Government will intercept
at least some of the plaintiffs’ communications, including
some that the 2008 amendment, §1881a, but not the pre­
2008 Act, authorizes the Government to intercept.
At the same time, nothing suggests the presence of some
special factor here that might support a contrary conclu­
sion. The Government does not deny that it has both the
10 CLAPPER v. AMNESTY INTERNATIONAL USA
BREYER, J., dissenting
motive and the capacity to listen to communications of the
kind described by plaintiffs. Nor does it describe any
system for avoiding the interception of an electronic com­
munication that happens to include a party who is an
American lawyer, journalist, or human rights worker.
One can, of course, always imagine some special circum­
stance that negates a virtual likelihood, no matter how
strong. But the same is true about most, if not all, ordi­
nary inferences about future events. Perhaps, despite
pouring rain, the streets will remain dry (due to the pres­
ence of a special chemical). But ordinarily a party that
seeks to defeat a strong natural inference must bear the
burden of showing that some such special circumstance
exists. And no one has suggested any such special circum­
stance here.
Consequently, we need only assume that the Govern­
ment is doing its job (to find out about, and combat, terror­
ism) in order to conclude that there is a high probability
that the Government will intercept at least some elec­
tronic communication to which at least some of the plaintiffs
are parties. The majority is wrong when it describes the
harm threatened plaintiffs as “speculative.”
IV
A
The majority more plausibly says that the plaintiffs
have failed to show that the threatened harm is “certainly
impending.” Ante, at 10 (internal quotation marks omit­
ted). But, as the majority appears to concede, see ante, at
15–16, and n. 5, certainty is not, and never has been, the
touchstone of standing. The future is inherently uncer­
tain. Yet federal courts frequently entertain actions for
injunctions and for declaratory relief aimed at preventing
future activities that are reasonably likely or highly likely,
but not absolutely certain, to take place. And that degree
of certainty is all that is needed to support standing here.
Cite as: 568 U. S. ____ (2013) 11
BREYER, J., dissenting
The Court’s use of the term “certainly impending” is not
to the contrary. Sometimes the Court has used the phrase
“certainly impending” as if the phrase described a suffi-
cient, rather than a necessary, condition for jurisdiction.
See Pennsylvania v. West Virginia, 262 U. S. 553, 593
(1923) (“If the injury is certainly impending that is
enough”). See also Babbitt, 442 U. S., at 298 (same). On
other occasions, it has used the phrase as if it concerned
when, not whether, an alleged injury would occur. Thus,
in Lujan, 504 U. S., at 564, n. 2, the Court considered a
threatened future injury that consisted of harm that
plaintiffs would suffer when they “soon” visited a gov­
ernment project area that (they claimed) would suffer
environmental damage. The Court wrote that a “mere pro­
fession of an intent, some day, to return” to the project area
did not show the harm was “imminent,” for “soon” might
mean nothing more than “in this lifetime.” Id., at 564–
565, n. 2 (internal quotation marks omitted). Similarly,
in McConnell v. Federal Election Comm’n, 540 U. S. 93(2003), the Court denied standing because the Senator’s
future injury (stemming from a campaign finance law)
would not affect him until his reelection. That fact, the
Court said, made the injury “too remote temporally to
satisfy Article III standing.” Id., at 225–226.
On still other occasions, recognizing that “ ‘ imminence’
is concededly a somewhat elastic concept,” Lujan, supra,
at 565, n. 2, the Court has referred to, or used (sometimes
along with “certainly impending”) other phrases such as
“reasonable probability” that suggest less than absolute,
or literal certainty. See Babbitt, supra, at 298 (plaintiff
“must demonstrate a realistic danger of sustaining a direct
injury” (emphasis added)); Friends of the Earth, Inc. v.
Laidlaw Environmental Services (TOC), Inc., 528 U. S.
167, 190 (2000) (“[I]t is the plaintiff ’s burden to establish
standing by demonstrating that . . . the defendant’s alleg­
edly wrongful behavior will likely occur or continue”). See
12 CLAPPER v. AMNESTY INTERNATIONAL USA
BREYER, J., dissenting
also Monsanto Co. v. Geertson Seed Farms, 561 U. S. ___,
___ (2010) (slip op., at 11) (“ ‘ “reasonable probability” ’ ”
and “substantial risk”); Davis, 554 U. S., at 734 (“realistic
and impending threat of direct injury”); MedImmune, Inc.
v. Genentech, Inc., 549 U. S. 118, 129 (2007) (“genuine
threat of enforcement”); Department of Commerce v.
United States House of Representatives, 525 U. S. 316, 333
(1999) (“substantially likely” (internal quotation marks
omitted)); Clinton v. City of New York, 524 U. S. 417, 432
(1998) (“sufficient likelihood of economic injury”); Pennell
v. San Jose, 485 U. S. 1, 8 (1988) (“realistic danger” (inter­
nal quotation marks omitted)); Blum v. Yaretsky, 457 U. S.
991, 1001 (1982) (“quite realistic” threat); Bryant v. Yellen,
447 U. S. 352, 367–368 (1980) (“likely”); Buckley v. Valeo,
424 U. S. 1, 74 (1976) (per curiam) (“reasonable probabil­
ity”). Taken together the case law uses the word “certain­
ly” as if it emphasizes, rather than literally defines, the
immediately following term “impending.”
B
1
More important, the Court’s holdings in standing cases
show that standing exists here. The Court has often found
standing where the occurrence of the relevant injury was
far less certain than here. Consider a few, fairly typical,
cases. Consider Pennell, supra. A city ordinance forbade
landlords to raise the rent charged to a tenant by more
than 8 percent where doing so would work an unreasona­
bly severe hardship on that tenant. Id., at 4–5. A group of
landlords sought a judgment declaring the ordinance
unconstitutional. The Court held that, to have standing,
the landlords had to demonstrate a “ ‘realistic danger of
sustaining a direct injury as a result of the statute’s opera­
tion.’ ” Id., at 8 (emphasis added). It found that the land­
lords had done so by showing a likelihood of enforcement
and a “probability,” ibid., that the ordinance would make
Cite as: 568 U. S. ____ (2013) 13
BREYER, J., dissenting
the landlords charge lower rents—even though the land­
lords had not shown (1) that they intended to raise the
relevant rents to the point of causing unreasonably severe
hardship; (2) that the tenants would challenge those in­
creases; or (3) that the city’s hearing examiners and arbi­
trators would find against the landlords. Here, even more
so than in Pennell, there is a “realistic danger” that the
relevant harm will occur.
Or, consider Blum, supra. A group of nursing home
residents receiving Medicaid benefits challenged the con­
stitutionality (on procedural grounds) of a regulation that
permitted their nursing home to transfer them to a less
desirable home. Id., at 999–1000. Although a Medicaid
committee had recommended transfers, Medicaid-initiated
transfer had been enjoined and the nursing home itself
had not threatened to transfer the plaintiffs. But the
Court found “standing” because “the threat of transfers”
was “not ‘imaginary or speculative’ ” but “quite realistic,”
hence “sufficiently substantial.” Id., at 1000–1001 (quot­
ing Younger v. Harris, 401 U. S. 37, 42 (1971)). The plain­
tiffs’ injury here is not imaginary or speculative, but “quite
realistic.”
Or, consider Davis, supra. The plaintiff, a candidate for
the United States House of Representatives, self-financed
his campaigns. He challenged the constitutionality of an
election law that relaxed the limits on an opponent’s con­
tributions when a self-financed candidate’s spending itself
exceeded certain other limits. His opponent, in fact, had
decided not to take advantage of the increased contribu­
tion limits that the statute would have allowed. Id., at
734. But the Court nonetheless found standing because
there was a “realistic and impending threat,” not a cer­
tainty, that the candidate’s opponent would do so at the
time the plaintiff filed the complaint. Id., at 734–735.
The threat facing the plaintiffs here is as “realistic and
impending.”
14 CLAPPER v. AMNESTY INTERNATIONAL USA
BREYER, J., dissenting
Or, consider MedImmune, supra. The plaintiff, a patent
licensee, sought a declaratory judgment that the patent
was invalid. But, the plaintiff did not face an imminent
threat of suit because it continued making royalty pay­
ments to the patent holder. In explaining why the plain­
tiff had standing, we (1) assumed that if the plaintiff
stopped making royalty payments it would have standing
(despite the fact that the patent holder might not bring
suit), (2) rejected the Federal Circuit’s “reasonable ap­
prehension of imminent suit” requirement, and (3) in­
stead suggested that a “genuine threat of enforcement” was
likely sufficient. Id., at 128, 129, 132, n. 11 (internal
quotation marks omitted). A “genuine threat” is present
here.
Moreover, courts have often found probabilistic injuries
sufficient to support standing. In Duke Power Co. v. Caro-
lina Environmental Study Group, Inc., 438 U. S. 59 (1978),
for example, the plaintiffs, a group of individuals living
near a proposed nuclear powerplant, challenged the con­
stitutionality of the Price-Anderson Act, a statute that
limited the plant’s liability in the case of a nuclear acci­
dent. The plaintiffs said that, without the Act, the de­
fendants would not build a nuclear plant. And the building
of the plant would harm them, in part, by emitting
“non-natural radiation into [their] environment.” Id., at
74. The Court found standing in part due to “our general­
ized concern about exposure to radiation and the appre­
hension flowing from the uncertainty about the health and
genetic consequences of even small emissions.” Ibid.(emphasis added). See also Monsanto Co., supra, at ___
(slip op., at 11–12) (“A substantial risk of gene flow injures
respondents in several ways” (emphasis added)).
See also lower court cases, such as Mountain States
Legal Foundation v. Glickman, 92 F. 3d 1228, 1234–1235
(CADC 1996) (plaintiffs attack Government decision to
limit timber harvesting; standing based upon increased
Cite as: 568 U. S. ____ (2013) 15
BREYER, J., dissenting
risk of wildfires); Natural Resources Defense Council v.
EPA, 464 F. 3d 1, 7 (CADC 2006) (plaintiffs attack Gov­
ernment decision deregulating methyl bromide; standing
based upon increased lifetime risk of developing skin
cancer); Constellation Energy Commodities Group, Inc. v.
FERC, 457 F. 3d 14, 20 (CADC 2006) (standing based on
increased risk of nonrecovery inherent in the reduction of
collateral securing a debt of uncertain amount); Sutton v.
St. Jude Medical S. C., Inc., 419 F. 3d 568, 570–575 (CA6
2005) (standing based on increased risk of harm caused by
implantation of defective medical device); Johnson v.
Allsteel, Inc., 259 F. 3d 885, 888–891 (CA7 2001) (stand­
ing based on increased risk that Employee Retirement
Income Security Act beneficiary will not be covered due
to increased amount of discretion given to ERISA
administrator).
How could the law be otherwise? Suppose that a federal
court faced a claim by homeowners that (allegedly) unlaw­
ful dam-building practices created a high risk that their
homes would be flooded. Would the court deny them
standing on the ground that the risk of flood was only 60,
rather than 90, percent?
Would federal courts deny standing to a plaintiff in a
diversity action who claims an anticipatory breach of
contract where the future breach depends on probabilities?
The defendant, say, has threatened to load wheat onto a
ship bound for India despite a promise to send the wheat
to the United States. No one can know for certain that
this will happen. Perhaps the defendant will change his
mind; perhaps the ship will turn and head for the United
States. Yet, despite the uncertainty, the Constitution does
not prohibit a federal court from hearing such a claim.
See 23 R. Lord, Williston on Contracts §63:35 (4th ed.
2002) (plaintiff may bring an anticipatory breach suit even
though the defendant’s promise is one to perform in the
future, it has not yet been broken, and defendant may still
16 CLAPPER v. AMNESTY INTERNATIONAL USA
BREYER, J., dissenting
retract the repudiation). E.g., Wisconsin Power & Light
Co. v. Century Indemnity Co., 130 F. 3d 787, 792–793
(CA7 1997) (plaintiff could sue insurer that disclaimed
liability for all costs that would be incurred in the future if
environmental agencies required cleanup); Combs v. In-
ternational Ins. Co., 354 F. 3d 568, 598–601 (CA6 2004)
(similar).
Would federal courts deny standing to a plaintiff who
seeks to enjoin as a nuisance the building of a nearby pond
which, the plaintiff believes, will very likely, but not inevi­
tably, overflow his land? See 42 Am. Jur. 2d Injunctions
§§2, 5 (2010) (noting that an injunction is ordinarily pre­
ventive in character and restrains actions that have not
yet been taken, but threaten injury). E.g., Central Delta
Water Agency v. United States, 306 F. 3d 938, 947–950
(CA9 2002) (standing to seek injunction where method of
operating dam was highly likely to severely hamper plain­
tiffs’ ability to grow crops); Consolidated Companies, Inc.
v. Union Pacific R. Co., 499 F. 3d 382, 386 (CA5 2007)
(standing to seek injunction requiring cleanup of land
adjacent to plaintiff ’s tract because of threat that contam­
inants might migrate to plaintiff ’s tract).
Neither do ordinary declaratory judgment actions al­
ways involve the degree of certainty upon which the Court
insists here. See, e.g., Maryland Casualty Co. v. Pacific
Coal & Oil Co., 312 U. S. 270, 273 (1941) (insurance com­
pany could seek declaration that it need not pay claim
against insured automobile driver who was in an accident
even though the driver had not yet been found liable for
the accident); Aetna Life Ins. Co. v. Haworth, 300 U. S.
227, 239–244 (1937) (insurance company could seek decla­
ration that it need not pay plaintiff for disability although
plaintiff had not yet sought disability payments). See
also, e.g., Associated Indemnity Corp. v. Fairchild Indus-
tries, Inc., 961 F. 2d 32, 35–36 (CA2 1992) (insured could
seek declaration that insurance company must pay liabil­
Cite as: 568 U. S. ____ (2013) 17
BREYER, J., dissenting
ity even before insured found liable).
2
In some standing cases, the Court has found that a
reasonable probability of future injury comes accompanied
with present injury that takes the form of reasonable
efforts to mitigate the threatened effects of the future
injury or to prevent it from occurring. Thus, in Monsanto
Co., 561 U. S., at ___ (slip op., at 11–14) plaintiffs, a group
of conventional alfalfa growers, challenged an agency
decision to deregulate genetically engineered alfalfa. They
claimed that deregulation would harm them because their
neighbors would plant the genetically engineered seed,
bees would obtain pollen from the neighbors’ plants, and
the bees would then (harmfully) contaminate their own
conventional alfalfa with the genetically modified gene.
The lower courts had found a “reasonable probability” that
this injury would occur. Ibid. (internal quotation marks
omitted).
Without expressing views about that probability, we
found standing because the plaintiffs would suffer present
harm by trying to combat the threat. Ibid. The plaintiffs,
for example, “would have to conduct testing to find out
whether and to what extent their crops have been contam­
inated.” Id., at ___ (slip op., at 12). And they would have
to take “measures to minimize the likelihood of potential
contamination and to ensure an adequate supply of
non-genetically-engineered alfalfa.” Ibid. We held that these
“harms, which [the plaintiffs] will suffer even if their crops
are not actually infected with” the genetically modified
gene, “are sufficiently concrete to satisfy the injury-in-fact
prong of the constitutional standing analysis.” Id., at ___
(slip op., at 13).
Virtually identical circumstances are present here.
Plaintiff McKay, for example, points out that, when he
communicates abroad about, or in the interests of, a client
18 CLAPPER v. AMNESTY INTERNATIONAL USA
BREYER, J., dissenting
(e.g., a client accused of terrorism), he must “make an
assessment” whether his “client’s interests would be com­
promised” should the Government “acquire the communi­
cations.” App. to Pet. for Cert. 375a. If so, he must either
forgo the communication or travel abroad. Id., at 371a–
372a (“I have had to take measures to protect the confi­
dentiality of information that I believe is particularly
sensitive,” including “travel that is both time-consuming
and expensive”).
Since travel is expensive, since forgoing communication
can compromise the client’s interests, since McKay’s as­
sessment itself takes time and effort, this case does not
differ significantly from Monsanto. And that is so whether
we consider the plaintiffs’ present necessary expenditure
of time and effort as a separate concrete, particularized,
imminent harm, or consider it as additional evidence that
the future harm (an interception) is likely to occur. See
also Friends of the Earth, Inc., 528 U. S., at 183–184 (hold­
ing that plaintiffs who curtailed their recreational activi­
ties on a river due to reasonable concerns about the effect
of pollutant discharges into that river had standing);
Meese v. Keene, 481 U. S. 465, 475 (1987) (stating that “the
need to take . . . affirmative steps to avoid the risk of harm
. . . constitutes a cognizable injury”).
3
The majority cannot find support in cases that use the
words “certainly impending” to deny standing. While I do
not claim to have read every standing case, I have exam­
ined quite a few, and not yet found any such case. The
majority refers to Whitmore v. Arkansas, 495 U. S. 149(1990). But in that case the Court denied standing to a
prisoner who challenged the validity of a death sentence
given to a different prisoner who refused to challenge his
own sentence. The plaintiff feared that in the absence of
an appeal, his fellow prisoner’s death sentence would be
Cite as: 568 U. S. ____ (2013) 19
BREYER, J., dissenting
missing from the State’s death penalty database and
thereby skew the database against him, making it less
likely his challenges to his own death penalty would suc­
ceed. The Court found no standing. Id., at 161. But the
fellow prisoner’s lack of appeal would have harmed the
plaintiff only if (1) the plaintiff separately obtained federal
habeas relief and was then reconvicted and resentenced to
death, (2) he sought review of his new sentence, and (3)
during that review, his death sentence was affirmed only
because it was compared to an artificially skewed data­
base. Id., at 156–157. These events seemed not very
likely to occur.
In DaimlerChrysler Corp. v. Cuno, 547 U. S. 332 (2006),
taxpayers challenged the constitutionality of a tax break
offered by state and local governments to a car manufac­
turer. We found no standing. But the plaintiffs would
have suffered resulting injury only if that the tax break
had depleted state and local treasuries and the legislature
had responded by raising their taxes. Id., at 344.
In Lujan, the case that may come closest to supporting
the majority, the Court also found no standing. But, as I
pointed out, supra, at 11, Lujan is a case where the Court
considered when, not whether, the threatened harm would
occur. 504 U. S., at 564, n. 2. The relevant injury there
consisted of a visit by environmental group’s members to a
project site where they would find (unlawful) environmen­
tal depredation. Id., at 564. The Court pointed out that
members had alleged that they would visit the project
sites “soon.” But it wrote that “soon” might refer to almost
any time in the future. Ibid., n. 2. By way of contrast, the
ongoing threat of terrorism means that here the relevant
interceptions will likely take place imminently, if not now.
The Court has, of course, denied standing in other cases.
But they involve injuries less likely, not more likely, to
occur than here. In a recent case, Summers v. Earth
Island Institute, 555 U. S. 488 (2009), for example, the
20 CLAPPER v. AMNESTY INTERNATIONAL USA
BREYER, J., dissenting
plaintiffs challenged a regulation exempting certain tim­
ber sales from public comment and administrative appeal.
The plaintiffs claimed that the regulations injured them
by interfering with their esthetic enjoyment and recrea­
tional use of the forests. The Court found this harm too
unlikely to occur to support standing. Id., at 496. The
Court noted that one plaintiff had not pointed to a specific
affected forest that he would visit. The Court concluded
that “[t]here may be a chance, but . . . hardly a likelihood,”
that the plaintiff ’s “wanderings will bring him to a parcel
about to be affected by a project unlawfully subject to the
regulations.” Id., at 495 (emphasis added).
4
In sum, as the Court concedes, see ante, at 15–16, and
n. 5, the word “certainly” in the phrase “certainly impend­
ing” does not refer to absolute certainty. As our case law
demonstrates, what the Constitution requires is some­
thing more akin to “reasonable probability” or “high prob­
ability.” The use of some such standard is all that is
necessary here to ensure the actual concrete injury that
the Constitution demands. The considerations set forth in
Parts II and III, supra, make clear that the standard is
readily met in this case.
* * *
While I express no view on the merits of the plaintiffs’
constitutional claims, I do believe that at least some of the
plaintiffs have standing to make those claims. I dissent,
with respect, from the majority’s contrary conclusion.