Sep 222011
 September 22, 2011  Posted by  Court, Laws, Surveillance

Mark Hamblett provides some context for split decision of the U.S. Court of Appeals for the Second Circuit over challenges to amendments made to the Foreign Intelligence Surveillance Act (FISA) in the FISA Amendments Act (FAA). As I noted yesterday, the court’s denial of an en banc hearing on the government’s appeal allows the case to go forward – or maybe right up to the Supreme Court on the issue of whether the plaintiffs have standing to file the suit. Hamblett writes:

The plaintiffs’ facial challenge to the statute should be rejected because they cannot be targeted under the statute, the dissenters said, and they charged the original panel that issued its decision in March in Amnesty International United States v. Clapper, 09-4112-cv, had turned the standard for standing on its head.

Judge Gerard Lynch issued the lone opinion defending the denial of rehearing. He first agreed that the case met the “exceptional importance” standard and acknowledged that the original opinion “may be in tension” with those of other circuits.

“But I dispute the dissenters assertions that Amnesty somehow distorts the law of standing, or, in Judge Livingston’s words, ‘threatens a sub silentio transformation of this Circuit’s case law,'” he said.

Read more on New York Law Journal.

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