throbber
(Slip Opinion)
`
`
`
` OCTOBER TERM, 2012
`
`
`Syllabus
`
`1
`
` 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,
`
`
`
`
`
`

`
`
`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
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`2
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`
`
`
`

`
`3
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`
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` Cite as: 568 U. S. ____ (2013)
`
`
`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)
`
`Opinion of the Court
`
`1
`
`
` 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
`
`——————
`1The 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
`
`
`
`
`
`

`
`
`
`3
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`
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` Cite as: 568 U. S. ____ (2013)
`
`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)
`
`
`
`
`
`

`
`
`
` 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
`
`
`
`
`
`
`
`4
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`

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`5
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`Cite as: 568 U. S. ____ (2013)
`
`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
`——————
`2Congress recently reauthorized the FISA Amendments Act for an-
`
`
`other five years. See 126 Stat. 1631.
`
`
`
`
`
`
`
`
`
`

`
`
`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
`
`
`
`
`
`——————
`3The 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).
`
`
`
`
`
`
`
`
`
`6
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`

`
`
`
`7
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` Cite as: 568 U. S. ____ (2013)
`
`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
`
`fact—economic and professional
`“present
`injuries
`in
`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.
`
`
`
`

`
`
`
`9
`
`
`
` Cite as: 568 U. S. ____ (2013)
`
`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
`
`
`
`
`
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`
`

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` 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
`
`
`
`
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`
`
`
`
`10
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`

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` 11
`
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`
` Cite as: 568 U. S. ____ (2013)
`
`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
`
`
`
`
`
`

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`12
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` 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
`
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`

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`13
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`Cite as: 568 U. S. ____ (2013)
`
`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
`
`t

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