Eric Posner in Slate on "Why Amnesty Should Lose at the Supreme Court"

Why Amnesty Should Lose at the Supreme Court
Eric A. Posner
Slate
October 26, 2012

The Supreme Court will hear argument Monday in a case designed to put some Bush-Obama terror-related surveillance policies on trial. Brought by Amnesty International and other public-interest groups, the challenge reflects post-9/11 anxiety about an out-of-control executive branch, and, even more, a fantasy that courts will do anything about it. They won’t, and that’s a good thing.

In 1978, Congress passed the Foreign Intelligence Surveillance Act, which attempted to regulate the president’s use of wiretapping for national security purposes. In order to conduct surveillance of a “foreign power” or its agents when their communications travel to or from the United States, federal officials would generally be required to obtain a warrant from the secret Foreign Intelligence Surveillance Court. In trying to cast a wide net, the Bush administration may have violated this statute, as Steve Vladeck suggests, since the law requires the government to specifically identify the surveillance targets. To address this problem, Congress in 2008 passed the FISA Amendments Act, which authorizes the U.S. government to engage in mass surveillance abroad. The government may not intentionally target Americans (at home or abroad), or foreigners in the United States, but the law does not prohibit spies from reading communications between lawful targets and Americans who are inadvertently swept into the net.

Amnesty argues that this provision of the 2008 amendments violates the Fourth Amendment, which protects people from unreasonable searches. Monday’s case, called Clapper v. Amnesty International, does not tackle this question. The trial court dismissed Amnesty’s complaint not for any reason involving the Fourth Amendment, but rather because Amnesty lacked standing to challenge the warrantless wiretapping at issue. The Court of Appeals overturned the trial court’s decision, and now the Supreme Court must decide whether Amnesty may bring this lawsuit.

Faculty: 
Eric Posner