on January 2, 2014, a petition for writ of certiorari was filed in the United States Supreme Court that claimed that the National Security Agency (NSA) engaged in unlawful, warrantless surveillance in violation of the Foreign Intelligence Surveillance Act of 1978, 50 USCS prec § 1801 (FISA).
In 2005, a New York Times article was published that claimed that the NSA, with the approval of the President, had been conducting unlawful surveillance for more than four years, after the events of September 11, 2001. Petitioners, the Center for Constitutional Rights and several members of its legal staff, asserted that they were forced to change their conduct and incurred additional expense as a result of the NSA’s policies of illegal surveillance. After the President and various other government officials defended their actions, petitioners filed their case in the United States District Court for the Northern District of California.
The District Court, in In re Nsa Telcoms. Records Litig., 2010 U.S. Dist. LEXIS 136156 (N.D. Cal. Dec. 21, 2010), dismissed the case after determining that petitioners did not establish standing because they did not prove that they were actually subjected to the illegal surveillance and harmed. The United States Court of Appeals for the Ninth Circuit then affirmed the dismissal and decided that petitioners had no actual knowledge of the surveillance practices and could not prove any actual harm. NSA Telecomms. Records Litig. v. Obama (In re NSA Telecomms. Records Litig.), 522 Fed. Appx. 383 (9th Cir. Cal. 2013)The Court of Appeals relied heavily on Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138 (U.S. 2013) in upholding the dismissal of the claims.
In the petition for certiorari, petitioners argued that they had standing to bring the action because they proved that they were injured by the actions of the NSA, the President and other government officials knew of and agreed with the unlawful surveillance taken, and the decision of Clapper did not limit their right to recovery. Petitioners asked for clarification of the holding in Clapper after claiming that after Clapper, public interest attorneys have no avenue for recourse to challenge any unlawful surveillance. Petitioners also noted that the only current avenue for redress was in the press and therefore it was imperative that the Supreme Court accept certiorari and decide the issues.
The response is due February 6, 2014.
The case is 13-802, Center for Constitutional Rights, et al. v. Barack H. Obama, President of the United States, et al.
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