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Tuesday, June 25, 2024 | Back issues
Courthouse News Service Courthouse News Service

Court Revives Suit Over Bush-Era Wiretap Law

MANHATTAN (CN) - A lawsuit over the U.S. government alleged surveillance of Americans' international phone calls and e-mails can proceed to trial, the 2nd Circuit ruled Monday.

"Because standing may be based on a reasonable fear of future injury and costs incurred to avoid that injury, and the plaintiffs have established that they have a reasonable fear of injury and have incurred costs to avoid it, we agree that they have standing," Judge Gerard Lynch wrote for a three-judge panel.

The ruling overturns a federal judge's 2009 finding that a coalition of civil rights organizations, defense attorneys and media groups lacked standing. U.S. District Judge John Koeltl had dismissed the challenge to the Foreign Intelligence Surveillance Act.

President George W. Bush signed the FISA Amendments Act in 2008, legalizing the warrantless surveillance program he approved in 2001 and giving the government virtually unchecked authority to listen to the international phone calls and emails of U.S. citizens.

Koeltl ruled that the plaintiffs, led by Amnesty International and the American Civil Liberties Union, could not prove that the government actually spied on them, and that their fear of injury under FSIA was merely speculative.

On appeal the government restated this argument and added that the organizations would only be tangentially related to the "persons of interest" who could be the target of any possible surveillance.

The appeals court disagreed with both positions, finding that government surveillance poses a threat that is great enough to have caused the groups to suffer injury now. The groups have gone to great lengths to avoid the chance that wiretaps could compromise their communications with clients and sources.

"The government overstates the standard for determining when a present injury linked to a contingent future injury can support standing," Lynch wrote. "The plaintiffs have demonstrated that they suffered present injuries in fact - concrete economic and professional harms - that are fairly traceable to the FAA and redressable by a favorable judgment."

It is an admitted fact that the government claims to have the authority to monitor people who are in regular and sometimes privileged contact with the groups, according to the ruling.

One provision of the act says that the government does not have to identify the target of wiretapping when seeking authorization to begin surveillance from the Foreign Intelligence Surveillance Court. This makes it impossible for targets to know if their communications are being monitored.

Once the FISA Court authorizes such action, it does not review the cases for one year. During this time, the executive branch - the very branch of the government performing the surveillance - is supposed is in charge of monitoring its own compliance.

"The government's surveillance practices should not be immune from judicial review, and this decision ensures that they won't be," ACLU deputy legal director Jameel Jaffer said in a statement.

"The law we've challenged permits the government to conduct dragnet surveillance of Americans' international communications, and it has none of the safeguards that the Constitution requires," Jaffer continued. "Now that the appeals court has recognized that our clients have the right to challenge the law, we look forward to pressing that challenge in the trial court."

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