Judge Nixes Suit Over Bush-Era Wiretap Law

     (CN) – A federal judge in Manhattan dismissed Amnesty International’s challenge of a Bush-era law that gives the government virtually unchecked authority to listen to the international phone calls and emails of U.S. citizens.

     In 2008, then-President George W. Bush signed the FISA Amendments Act (FAA), which legalized the warrantless surveillance program he approved in 2001.
     The amendments to the Foreign Intelligence Surveillance Act allowed the government to conduct surveillance without telling a court who it intends to spy on, where the targets are located, why it’s conducting the surveillance and what phone lines and email addresses will be monitored, according to Amnesty International’s federal complaint.
     The human-rights group said the amendments “gutted the original law by eviscerating the role of judicial oversight in government surveillance.”
      The FAA also protects telecommunications companies that aided the Bush administration’s warrantless wiretapping program.
     Prior to the amendments, the government had to seek approval from the FISA court to conduct electronic surveillance on non-U.S. citizens outside the country. The court is comprised of seven judges appointed by the Chief Justice of United States. After the FAA, surveillance could be authorized for up to one year by the attorney general and the director of national intelligence, jointly, while the application for authorization is pending.
     Plaintiffs included attorneys and human rights, labor, legal and media organizations. Claiming violations of the First and Fourth Amendments and the separation of powers doctrine, they sought a court order declaring the law unconstitutional.
     The government moved to dismiss the suit, saying electronic surveillance that targets non-U.S. citizens provides an “early warning system” against possible terror attacks or an attack against U.S. troops.
     The government insists that it doesn’t target U.S. citizens, either at home or abroad. But the plaintiffs said there is no protection for an American who happens to be on the other end of the phone call or email.
     At oral argument, the government said it was “accepting the factual submissions of the plaintiffs as true.”
     U.S. District Judge John G. Koeltl said the government did not dispute the fact that warrantless wiretapping was taking place, so the question was whether the plaintiffs had standing to sue.
     The plaintiffs asserted an “actual and well-founded” fear that their communications will be monitored under the FAA. They argued that their conversations often contain “sensitive and sometimes privileged information,” citing communications with clients, journalistic sources, witnesses, foreign government officials and victims of human-rights abuses.
     The attorney plaintiffs claimed their attorney-client privileges have been compromised, and said their fear of monitoring has affected the way they do their job. Many have stopped “engaging in certain conversations” by phone and email, according to the lawsuit.
     “The attorney plaintiffs have an ethical obligation to avoid communicating confidential information about client matters over telephone, fax, or email if they have reason to believe that it is likely to be intercepted by others,” the lawsuit states.
     Judge Koeltl ruled that the plaintiffs could only show an “abstract fear” of being monitored, not a genuine threat.
     “They only allege a fear, based on perceived likelihood that their communications will be surveilled,” Koeltl wrote. “But absent of any showing that such surveillance has been conducted, authorized or even contemplated, the plaintiffs’ fear is speculative.”
     The FAA will sunset at the end of 2012.
     The Patriot Act, passed in 2001 and re-authorized in 2006, also amended FISA to make it easier for the government to obtain personal records of citizens from libraries and Internet Service Providers.

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