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															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
authorizing 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
Surveillance 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 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 future injury is too speculative to satisfy the
wellestablished 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, respondents 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
hypothetical 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 92Stat.
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
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 permissible, 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 Foreign
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),
92Stat. 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), 92Stat. 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 communication 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) ( 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 challenges 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), 122Stat. 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 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
supervision, and compliance with the Fourth Amendment. Section
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 surveillance.
§§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 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
dissemination 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 referred 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
minimization procedures are consistent with the statute and the
Fourth Amendment. See §1881a(i)(3)(A).[ 3 ]

															B

															Respondents are attorneys and human rights,
labor, legal, and media organizations whose work allegedly requires
them to engage in sensitive and sometimes privileged telephone and
e-mail communications with colleagues, 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 believed to be associated
with terrorist organizations,” “people 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 information,
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 surveillance will compel them to
travel abroad in order to have in-person conversations. In
addition, respondents declare that they have undertaken “costly and
burdensome 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 characterize 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 communications; 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 communications 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 harmful 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. Cuno , 547 U.S.
332 , 341 (2006) (internal quotation marks omitted); Raines v. Byrd , 521 U.S.
811 , 818 (1997) (internal 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. Defenders 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 Judiciary 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 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 constitute 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 objectively 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 requirement that “threatened injury must be
certainly impending to constitute injury in fact.” Whitmore , supra , at 158 (internal quotation marks omitted); see also DaimlerChrysler 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 Government 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 Intelligence Surveillance Court will conclude that the
Government’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 communications 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 possibilities); Whitmore , supra , at 157–160 (same). Moreover, even if respondents
could demonstrate injury in fact, the second link in the
above-described chain of contingencies—which amounts to mere
speculation about whether surveillance would be under §1881a or
some other authority—shows that respondents cannot satisfy the
requirement 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 respondents, who are
U. S. persons, cannot be targeted for surveillance under
§1881a. See §§1881a(b)(1)–(3); 667 F. 3d, at 173 (Raggi, J.,
dissenting from denial of rehearing en banc). Accordingly, it is no
surprise that respondents fail to offer any evidence that their
communications have been monitored under §1881a, a failure that
substantially 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 standing to
challenge alleged NSA surveillance). Indeed, respondents do not
even allege that the Government has sought the FISC’s approval for
surveillance of their communications. 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, respondents
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 government 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 international communications may be monitored by the
government.” Id. , at 375a (emphasis added); see also id. , at 337a, 343a–344a, 350a, 356a. “The party invoking
federal jurisdiction 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 set forth no specific facts demonstrating that the
communications 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 discretion in
determining which communications to target.[ 4 ]

															Second, even if respondents could demonstrate
that the targeting of their foreign contacts is imminent,
respondents can only speculate as to whether the Government will
seek to use §1881aauthorized 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 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 Government 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, because
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
Government 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 judgment.
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 advance 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.

															We decline to abandon our usual reluctance to
endorse standing theories that rest on speculation about the
decisions 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 concerning 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 acquiring the communications of
respondents’ foreign contacts. And fifth, even if the Government
were to conduct surveillance 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 ]

															B

															Respondents’ alternative argument—namely, that
they can establish standing based on the measures that they have
undertaken to avoid §1881a-authorized surveillance—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. Respondents
claim, for instance, that the threat of surveillance 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 concluded that,
because respondents are already suffering such ongoing injuries,
the likelihood of interception under §1881a is relevant only to the
question whether respondents’ ongoing injuries are “fairly
traceable” to §1881a. See 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
respondents 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, paranoid, or otherwise
unreasonable.” See id. , at 134. This improperly waters down
the fundamental requirements of Article III. Respondents’
contention that they have standing 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
suffering 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 standing 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 (internal quotation marks
omitted). Thus, allowing respondents 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
monitored 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 Government
was allegedly conducting surveillance of Mr. McKay’s client before
Congress enacted §1881a, it is difficult 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 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
plaintiffs 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 challenge the
legality of an Executive Order relating to surveillance because
“the ‘chilling effect’ which is produced by their fear of being
subjected to illegal surveillance and which deters them from
conducting constitutionally protected 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
Government’s purported activities under §1881a, and their
subjective fear of surveillance does not give rise to standing.

															IV

															A

															Respondents incorrectly maintain that “[t]he
kinds of injuries incurred here—injuries incurred because of
[respondents’] 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 standing 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 proposition 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 discharges of pollutants
were “concededly ongoing,” the only issue was whether “nearby
residents”—who were members 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’ communications and (2) the
sole dispute concerned the reasonableness 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 impairment 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 unquestionably 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 pollinate 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 conventional
alfalfa farmers in Monsanto , however, respondents in the
present case present no concrete evidence to substantiate their
fears, but instead rest on mere conjecture about possible
governmental actions.

															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., concurring
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 dissatisfaction
that respondents may have about the Foreign Intelligence
Surveillance Court’s rulings—or the congressional delineation of
that court’s role—is irrelevant to our standing analysis.

															Additionally, if the Government intends to use
or disclose information obtained or derived from a §1881a
acquisition 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 ] 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 acquired the foreign client’s
communications using §1881a-authorized surveillance.

															Finally, any electronic communications service
provider that the Government directs to assist in §1881a
surveillance 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 Surveillance 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
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. Notes 1 The term “United States
person” includes citizens of the United States, aliens admitted for
permanent residence, and certain associations and corporations. 50
U. S. C. §1801(i); see §1881(a). 2 Congress recently
reauthorized the FISA Amendments Act for another five years. See
126Stat. 1631. 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). 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
puzzling. 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. 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 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 substantial 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 §1881aauthorized
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)). 7 Although respondents’
alternative theory of standing rests primarily on choices that they have made based on their subjective fear of
surveillance, 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. 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 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. 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, telephone, 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 ordinary 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
“Controversies.” §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 consequences of judicial action.” Valley
Forge Christian College 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
“degree . . . 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 authorized 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 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
information 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 procedures
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 (compliance 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
requirement that the Government describe to the court each specific
target and identify each facility at which its surveillance 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.” 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 Mohammed, 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) that she is an attorney; (2) that she “represent[s]
Mohammedou 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
represents 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 communicate
electronically ( e.g. , by telephone or e-mail) with
foreigners located abroad; and (3) that in these communications
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 communications of a kind that the 2008
amendment, but not the prior Act, authorizes the Government to
intercept. These communications 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 activities. 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 information,” 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 representing 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, indicates that McKay will
engage in conversations that concern what suspected foreign
terrorists, such as his client, have done; in conversations that
concern his clients’ families, colleagues, and contacts; in
conversations that concern 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 commercial 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 Mariner, stating that
“some of the information [she] exchange[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 communications
of terrorists in foreign countries who may contact an associate in
the United States”). And the Government 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
requires access to timely, accurate, and insightful intelligence on
the capabilities, intentions, and activities of . . .
terrorists”).

															Third, the Government’s past behavior shows that it has 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
degree 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
international 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 intelligence
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 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 surveillance of most electronic communications between
domestic and foreign points).

															Of course, to exercise this capacity the
Government must have intelligence court authorization. But the
Government 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
Government 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
conclusion. The Government does not deny that it has both the
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 communication that
happens to include a party who is an American lawyer, journalist,
or human rights worker. One can, of course, always imagine some
special circumstance that negates a virtual likelihood, no matter
how strong. But the same is true about most, if not all, ordinary
inferences about future events. Perhaps, despite pouring rain, the
streets will remain dry (due to the presence 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 circumstance here.

															Consequently, we need only assume that the
Government is doing its job (to find out about, and combat,
terrorism) 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 omitted). 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 uncertain. 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.

															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 sufficient, 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 allegedly
wrongful behavior will likely occur or continue”). See 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” (internal 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 probability”).
Taken together the case law uses the word “certainly” 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 unreasonably
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
operation.’ ” Id ., at 8 (emphasis added). It found that
the landlords had done so by showing a likelihood of enforcement
and a “probability,” ibid. , that the ordinance would make
the landlords charge lower rents—even though the landlords 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 increases; or (3) that the city’s hearing
examiners and arbitrators 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
constitutionality (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 (quoting Younger v. Harris , 401 U.S.
37 , 42 (1971)). The plaintiffs’ 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 contributions 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 contribution 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 certainty, 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.”

															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 payments to the
patent holder. In explaining why the plaintiff 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. Carolina 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 constitutionality of the Price-Anderson Act, a statute that
limited the plant’s liability in the case of a nuclear accident.
The plaintiffs said that, without the Act, the defendants 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 generalized concern about exposure to radiation and the
apprehension 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 risk of wildfires); Natural Resources Defense
Council v. EPA, 464 F.3d 1 , 7 (CADC 2006) (plaintiffs attack Government
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) unlawful
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 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. International 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 inevitably, overflow his land? See 42 Am. Jur. 2d Injunctions
§§2, 5 (2010) (noting that an injunction is ordinarily preventive
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
plaintiffs’ 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 contaminants
might migrate to plaintiff’s tract).

															Neither do ordinary declaratory judgment actions
always 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 company 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 declaration
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 Industries,
Inc., 961 F.2d 32, 35–36 (CA2 1992) (insured could seek
declaration that insurance company must pay liability 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 contaminated.” 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
( e.g. , a client accused of terrorism), he must “make an
assessment” whether his “client’s interests would be compromised”
should the Government “acquire the communications.” 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 confidentiality 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
assessment 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 (holding that plaintiffs who
curtailed their recreational activities 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 examined
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 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 succeed. 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 database. 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 manufacturer.
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)
environmental 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 plaintiffs challenged a regulation
exempting certain timber sales from public comment and
administrative appeal. The plaintiffs claimed that the regulations
injured them by interfering with their esthetic enjoyment and
recreational 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 impending” does not refer to absolute certainty.
As our case law demonstrates, what the Constitution requires is
something more akin to “reasonable probability” or “high
probability.” 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.