Lawsuit Challenging Unconstitutional Spying Should Be Reinstated, Says ACLU

The
American Civil Liberties Union filed a brief late Wednesday arguing
that its lawsuit challenging an unconstitutional government spying law
should be reinstated. The ACLU and the New York Civil Liberties Union
filed the landmark lawsuit in July 2008 to stop the government from
conducting surveillance under the FISA Amendments Act (FAA), which
gives the executive branch virtually unchecked power to collect
Americans' international e-mails and telephone calls by the millions,
without a warrant and without suspicion of any kind.

"Allowing this case to move forward
is essential to protecting innocent Americans' e-mail and telephone
communications from dragnet, suspicionless government monitoring," said
Jameel Jaffer, Director of the ACLU National Security Project. "Without
court oversight, individual privacy rights are left to the mercy of the
political branches. The courts have not only the authority but also the
obligation to ensure that individual rights are not trampled by
overbroad surveillance laws."

The ACLU filed the lawsuit on behalf
of a broad coalition of attorneys and human rights, labor, legal and
media organizations whose work requires them to engage in sensitive and
sometimes privileged telephone and e-mail communications with
colleagues, clients, journalistic sources, witnesses, experts, foreign
government officials and victims of human rights abuses located outside
the United States. U.S. District Court Judge John G. Koeltl of the
Southern District of New York dismissed the case in August, ruling that
the plaintiffs did not have the right to challenge the new surveillance
law because they could not prove that their own communications had been
monitored under it. The ACLU's brief asks the U.S. Court of Appeals for
the Second Circuit to vacate Judge Koeltl's decision.

"The vast majority of people whose
communications are intercepted under this statute will never know about
it - in fact, it's possible that no one will ever be able to prove that
they were spied on under the FAA," said Larry Schwartztol, staff
attorney with the ACLU National Security Project. "If Americans are
prohibited from challenging the FAA unless they can show that their own
communications have been collected under it, the law may never be
subject to judicial review at all. The appellate court should overturn
the lower court ruling and allow this challenge to go forward."

According to yesterday's brief,
judicial review is necessary because the plaintiffs have been, and
continue to be, injured by the unconstitutional spying statute. Because
the plaintiffs engage in international communications that the
government is likely to intercept under the new statute, they face a
serious risk that the confidentiality of their sensitive and
confidential communications will be compromised. As a result, the
plaintiffs have been forced "to take costly and burdensome measures to
protect the privacy of their communications," including making
international trips to collect information that they previously would
have exchanged by phone or e-mail. The risk of government interception
is especially burdensome for the plaintiffs who are attorneys,
according to the brief, because they are "ethically required by codes
of professional conduct" to protect the confidentiality of their
communications. The brief also argues that, if endorsed by the appeals
court, the lower court's ruling would permanently insulate many
surveillance laws from judicial review.

In November, the ACLU filed a
Freedom of Information Act (FOIA) request for records related to the
implementation of the new law, including reports indicating how the FAA
is being interpreted and used, how many Americans are affected by this
sweeping spying regime and what safeguards are in place to prevent
abuse of Americans' privacy rights. The FOIA request seeks records from
the National Security Agency, the Justice Department, the Director of
National Intelligence and the Inspector Generals at each of these
agencies. The government has not yet released any of the records
requested.

The ACLU's brief is available online at: www.aclu.org/national-security/amnesty-et-al-v-blair-brief-plaintiffs-appellants

More information about the ACLU's lawsuit challenging the FAA is at: www.aclu.org/faa

The ACLU's FOIA request is at: www.aclu.org/national-security/aclu-foia-request-information-related-implementation-fisa-amendments-act

Attorneys on the case are Jaffer,
Schwartztol and Melissa Goodman of the ACLU National Security Project;
Christopher Dunn and Arthur Eisenberg of the NYCLU; and Charles S.
Sims, Theodore K. Cheng and Matthew J. Morris of Proskauer Rose LLP.