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, at

663–664 (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.