Appeals Court Revives Lawsuit Challenging NSA Surveillance of Americans
• By David Kravets
• March 21, 2011 |
• 3:25 pm |
• Categories: Surveillance, privacy
http://www.wired.com/threatlevel/2011/03/warrantless-eavesdropping/
It’s easy to forget these days, but former President George W. Bush’s illegal
warrantless surveillance program was never halted by Congress, nor by the Obama
administration. It was merely legalized in a 2008 law called the FISA
Amendments Act. That means the surveillance of Americans’ international phone
calls and internet use — complete with secret rooms in AT&T data centers around
the country — is likely still ongoing.
On Monday, a federal appeals court reinstated a key legal challenge to that
surveillance: a lawsuit filed by the ACLU and others within hours of the FISA
Amendments Act (.pdf) being signed into law. The lawsuit attacks the
constitutionality of the legislation, which allows the government to
electronically eavesdrop on Americans without a probable-cause warrant, so long
as one of the parties to the communication resides outside the United States,
and is suspected of a link to terrorism.
The decision by the 2nd U.S. Circuit Court of Appeals means the ACLU, and other
rights groups involved in the suit, might get their day in court. “This is a
really big victory,” said ACLU spokeswoman Rachel Myers. “The ruling is that
you don’t have to prove you’ve been spied on to challenge an unlawful spy act.”
A lower court had ruled the ACLU, Amnesty International, Global Fund for Women,
Global Rights, Human Rights Watch, International Criminal Defence Attorneys
Association, The Nation magazine, PEN American Center, Service Employees
International Union and other plaintiffs did not have standing to bring the
case, because they could not demonstrate that they were subject to the
eavesdropping.
The groups appealed, arguing that they often work with overseas dissidents who
might be targets of the National Security Agency program. Instead of speaking
with those people on the phone or through e-mails, the groups asserted that
they have had to make expensive overseas trips in a bid to maintain
attorney-client confidentiality.
The plaintiffs, some of them journalists, also claim the 2008 legislation
chills their speech, and violates their Fourth Amendment privacy rights.
Without ruling on the merits of the case, the appeals court on Monday agreed
with the plaintiffs that they have ample reason to fear the surveillance
program, and thus have legal standing to pursue their claim. From the ruling:
[T] plaintiffs have good reason to believe that their communications in
particular, will fall within the scope of the broad surveillance that they can
assume the government will conduct. The plaintiffs testify that in order to
carry out their jobs they must regularly communicate by telephone and e-mail
with precisely the sorts of individuals that the government will most likely
seek to monitor — i.e., individuals “the U.S. government believes or believed
to be associated with terrorist organizations,” “political and human rights
activists who oppose governments that are supported economically or militarily
by the U.S. government,” and “people located in geographical areas that are a
special focus of the U.S. government’s counterterrorism or diplomatic efforts.”
The plaintiffs’ assessment that these individuals are likely targets of [FISA
Amendments Act] surveillance is reasonable, and the government has not disputed
that assertion.
The case will now return to the courtroom of U.S. District Court Judge John G.
Koeltl in New York, where, if past is prologue, the Obama administration will
play its trump card: an assertion of the powerful State Secrets Privilege that
lets the executive branch effectively kill lawsuits by claiming they threaten
to expose national security secrets.
“State secrets could definitely come into it,” Myers said.
The courts tend to defer to such claims. But in a rare exception in 2008, a San
Francisco federal judge refused to throw out a wiretapping lawsuit against AT&T
under the State Secrets Privilege. The AT&T lawsuit was later killed anyway,
because the same FISA Amendments Act also granted the phone companies
retroactive legal immunity for their participation in the NSA program. That
immunity does not apply to the government.
The FISA Amendments Act — which passed with the support of then-senator Obama —
generally requires the Foreign Intelligence Surveillance Act Court to
rubber-stamp terror-related electronic surveillance requests. The government
does not have to identify the target or facility to be monitored. It can begin
surveillance a week before making the request, and the surveillance can
continue during the appellate process in a rare instance of rejection by the
secret FISA court.
Top photo: National Security Agency building in Fort Meade, Maryland
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