On September 24, 2012, Constitutional Accountability Center filed a brief in support of the Respondents in Clapper v. Amnesty International USA, a case that raises important questions about the judiciary’s role as guardian of the Constitution in a time of ascendant government surveillance powers.

The Respondents in this case are a group of American lawyers, journalists, and human rights researchers who filed a lawsuit challenging the Foreign Intelligence Surveillance Act Amendments Act of 2008. The law expanded government authority to collect Americans’ international communications from telecommunications facilities inside the United States. The Respondents argued that their stake in the law was personal, not merely ideological. As Americans overseas working in sensitive areas of international law, they were concerned about being targets of such surveillance. The U.S. Court of Appeals for the Second Circuit agreed and ruled they had standing to bring the challenge, recognizing that their work had already been harmed and sensibly looking beyond the inherent Catch-22; it would be impossible to prove they were being targeted because of the law’s own broad provisions for secrecy.

Now, Petitioner Lt. Gen. James R. Clapper, Director of National Intelligence, and the federal government have asked the Supreme Court to block judicial review of Respondents’ challenge.

As CAC’s brief demonstrates, the text and history of the Constitution support judicial review of Respondents’ constitutional claims. The Founders crafted Article III’s judicial power as a vital check on unlawful actions of the legislature, which is precisely what Respondents claimed in this lawsuit. While the government suggested that the separation-of-powers concerns reflected in standing doctrine support blocking access to the courts in this case, history shows that allowing the judiciary to check legislative infringements on individual rights is essential to our constitutional system. Indeed, it was the assurance of robust judicial review of legislative action that encouraged the supporters of the Bill of Rights. Of course, the Framers did not establish courts of mere complaint: James Madison and others confirmed that cases before the federal courts under Article III must be appropriate for the judiciary to resolve, and Court precedent implements this concern by ensuring that only individuals with a redressable “injury in fact” press their claims before the courts.

Because Article III requires a “case or controversy” for judicial review, “[a]t bottom, ‘the gist of the question of standing’ is whether petitioners have ‘such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.’” The unchallenged allegations of harm by Respondents meet this standard.

Unfortunately, on February 26, 2013, in a 5-4 decision, the Supreme Court’s conservatives denied Amnesty International and the other Respondents standing to pursue their constitutional claims.

For further analysis of the decision, see Rochelle Bobroff’s “Alito Turns Article III On Its Head in Clapper v. Amnesty International.”