Topics in brief

• Pages: 18-19

18 Volume 19, January–March 2013 international law update

© 2013 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com

from a reasonable fear of future harmful government

conduct,’ …”

“e Second Circuit’s analysis improperly

allowed respondents to establish standing by asserting

that they suer present costs and burdens that are

based on a fear of surveillance, so long as that fear is

not ‘fanciful, paranoid, or otherwise unreasonable.’

… is 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 inicting harm on themselves based on

their fears of hypothetical future harm that is not

certainly impending. … Any ongoing injuries that

respondents are suering are not fairly traceable to

§1881a.” [Slip op. 19-20] (footnotes omitted)

In conclusion, the Respondents lack Article

III standing because they failed to show that the

future injury is certainly impending. Further, they

cannot manufacture standing by incurring cost in

anticipation of non-imminent harm. us, the U.S.

Supreme Court reverses the Second Circuit.

Justice Breyer wrote a dissenting opinion, in

which Justices Ginsburg, Sotomayor, and Kagan

join. e dissenters nd that at least some of the

Respondents have standing.

“e plaintis’ 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. is Court has

often found the occurrence of similar future events

suciently certain to support standing. I dissent

from the Court’s contrary conclusion.” [Slip. op. 28]

: Clapper v. Amnesty International USA,

568 U.S. ______, No. 11-1025 (U.S. Supreme

Court, February 26, 2013).

U.S. Supreme Court holds that Torture Victim

Protection Act (TVPA) does not impose liability

against organizations. While visiting the West Bank,

Azzam Rahim (U.S. citizen) was allegedly arrested by

Palestinian Authority ocers and ultimately killed.

Rahim’s relatives sued the Palestinian Authority and

the Palestinian Liberation Organization under the

Torture Victim Protection Act of 1991 (TVPA) [cause

of action against an individual for acts of torture

and extrajudicial killing committed under authority

or color of law of any foreign nation. See 106 Stat.

73, note following 28 U.S.C. § 1350]. e District

Court dismissed because the TVPA’s authorization

of suit against an “individual” extended liability

only to natural persons. e District of Columbia

Circuit armed. e U.S. Supreme Court granted

certiorari and found that, as used in the TVPA, the

term ‘individual’ encompasses only natural persons.

us, the TVPA does not impose liability against

organizations. e ordinary, everyday meaning

of “individual” refers to a human being, not an

organization. Congress does not employ the word

any dierently. e TVPA’s liability provision uses

the word “individual” ve times in the same sentence

(TVPA § 2(a)). Since only a natural person can be

a victim of torture or extrajudicial killing, Congress

obviously did not use “individual” four times in

the same sentence to refer to a natural person and

once to refer to a natural person or an organization.

Congress clearly did not intend TVPA to apply to

organizations. While TVPA contemplates liability

against ocers who do not personally execute the

torture or extrajudicial killing, it does not follow that

the TVPA embraces liability against nonsovereign

organizations.

: Mohamad v. Palestinian Authority et. al.,

132 S.Ct. 1702; 1182 L.Ed.2d 720; 80 USLW 4339

(U.S. Sup.Ct. 2012).

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