Landmark decision on U.S. government wire-tapping and surveillance

By Anna Chen

In a victory for civil liberties, privacy and the rule of law, a New York federal appeals court reinstated a case that challenged the constitutionality of legislation that amended the Foreign Intelligence Surveillance Act (FISA) in 2008. The FISA Amendments Act, which allows the government to eavesdrop on communications without a probable-cause warrant, retroactively legalized wire-tapping authorized by former President George W. Bush and also gave immunity to telephone companies that cooperated.

Led by the American Civil Liberties Union (ACLU), a coalition of lawyers, journalists, human rights organizations, media organizations and activists argue that the FISA Amendment Act of 2008 is unconstitutional. “It allows the government unprecedented power to monitor the communications of innocent people. It doesn’t provide the kind of safeguards the Constitution requires,” said Jameel Jaffer, Director of the ACLU National Security Project.

On March 21, 2011, the appeals court ruled that the 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.”

According to a press release by the ACLU, the case was dismissed in August 2009 on the grounds that the plaintiffs could not mount a challenge without proof that their own communications had been monitored, even though the plaintiffs were unable to do so because of the secrecy of the program. But organizations and journalists have spoken out about the risks the Act poses to their work.

Amnesty International USA, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation magazine, PEN American Center are among the plaintiffs.

“Human Rights Watch joined this suit because secured communications are vitally important to our work. We can’t do this work if no one will talk to us because they think our communication lines are insecure,” said Dinah PoKempner, General Counsel for Human Rights Watch.

Naomi Klein, who writes for The Nation and other publications, submitted an affidavit that stated it compromised the safety of her sources, “they fear that the United States will share information about them with their own governments, and that their own governments will retaliate against them as a result.” She travels to Mexico to meet with sources in order to evade surveillance.

“None of us, especially those of us who have covered intelligence communities, are denying the necessity of monitoring. What we’re asking for is that they’re done through legal channels, and that there are safeguards in place,” said Chris Hedges, a journalist and book writer.

“The government’s surveillance practices should not be immune from judicial review, and this decision ensures that they won’t be,” said Jaffer.

Bush had authorized controversial wire-tapping surveillance after the September 11, 2001, attacks, giving the National Security Agency new powers to conduct dragnet surveillance of Americans’ international telephone calls and e-mails en masse, without a warrant, without suspicion of any kind, and with only very limited judicial oversight. The ACLU filed a lawsuit against the Act in July 2008, less than a day after Bush signed it into law.

The case will now return to U.S. District Court Judge John G. Koeltl in New York, where the government is expected to 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.

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