Our Warrantless Wiretapping Lawsuit

This afternoon, President Bush signed the FISA Amendments Act of 2008, a piece of legislation that will needlessly expand the government's ability to spy on Americans and ensure that the country never learns the full extent of Bush's unlawful wiretapping. There were many good Senators who showed courage in standing up to the White House and for the Constitution, but not enough.

A few hours after Bush's signing, The Nation joined with the ACLU in a lawsuit filed in the US District Court (Southern District) of New York challenging the constitutionality of the Act. The Nation is suing on behalf of itself, our staff and two of our contributing writers--Chris Hedges and Naomi Klein. The defendants are the Attorney General of the United States, Michael Mukasey; John M. "Mike" McConnell, Director of National Intelligence; and Lt. Gen. Keith Alexander, Director of the National Security Agency and Chief of the Security Service. We filed suit along with a coalition of other plaintiffs including Amnesty International USA, Human Rights Watch, Global Fund for Women, PEN American Center, Washington Office on Latin America, Service Employees International Union and several private attorneys.

Why are we joining this lawsuit?

For 143 years, The Nation has believed that an essential element of patriotism is the unyielding defense of civil liberties. Immediately after 9/11, as a fog of national security enveloped official Washington and the mainstream media enlisted in the Administration's war, it was clear to us that the need for an independent and critical press seemed never more urgent. The speedy passage of the repressive Patriot Act, with scarcely a murmur of dissent in Congress, and the establishment of military tribunals were troubling signs that a wartime crackdown on civil liberties was under way and called for vigorous opposition. Criticizing government policy in wartime is a not a path to popularity. Our patriotism was questioned, we were called "anti-American." Yet, as it has at different times in our country's turbulent history, The Nation marched to a different drummer and stood firm in defense of our core constitutional values--believing then, as we do now, that it is possible to defend this country from terrorists while also protecting the rights and freedoms that define our nation.

Today, we are proud to join with the ACLU and other plaintiffs in this lawsuit in the belief that the government 's surveillance activities should respect, not trample, the Constitution. Our history as America's oldest weekly journal of opinion has taught us that surveillance powers can easily become a threat to a free and open society.

In the brief filed today in the US District Court, we provide reasons for participating in this defense of our republic. Here are a few:

* Because of the nature of our work, The Nation's editors, columnists and contributors routinely engage in telephone and e-mail communications with individuals outside the US. These communications are vital to providing up-to-date, accurate information about emerging news stories and informing longer-range analytical articles on international topics. Some of the information exchanged by the Nation's editors, columnists and contributors through these communications constitutes "foreign intelligence information" as defined by the challenged law. For example, the Nation's staff members and contributing journalists routinely communicate by telephone or e-mail with political dissidents in other countries, foreign journalists in conflict zones, representatives of foreign government and individuals with connections to dissident political and social groups. Some of these communications relate to the involvement or alleged involvement of the US government or its allies abroad, or of the US military and its contractors, in repression and human rights abuses. Some of these communications relate to the subjects of terrorism, counterterrorism, or the foreign affairs of the US.

* We believe the challenged law undermines the ability of The Nation's editors, writers, contributors and staff to gather information that is critical to their work. The ability to communicate confidentially with sources is essential to journalists' work. Many of the people with whom the Nation's staff and contributors communicate will not share information if they believe that their identities cannot be kept confidential. Some of them fear retribution by their own governments; others fear retribution by the US government; still others fear persecution at the hands of terrorist groups. The risk that their identities will be revealed will lead some sources who otherwise would have shared information to decline to do so.

Specifically, we cite the work of our regular contributors Chris Hedges and Naomi Klein in our filing. Hedges, in his reporting on the wars in Iraq and Afghanistan and the so-called war on terror regularly communicates with sources in countries like Palestine, Iran, Syria and Sudan. Klein, in her essential critique of the extension of radical free-market capitalism and the resurgence of imperial militarism, routinely communicates with journalists, political activists, human rights campaigners in the Middle East, South America, and around the world. Sadly, we believe that the communications critical to their reporting could and would be monitored under the FISA Amendments Act. Certainly scores of other journalists would shoulder the same risk.

We are proud, then, to join with other patriots who understand the government's legitimate interest in protecting the nation against terrorism can be fulfilled without sacrificing the constitutional liberties that make the US worth defending.

Katrina vanden Heuvel is Editor and Publisher of The Nation. She is the co-editor of Taking Back America--And Taking Down The Radical Right (NationBooks, 2004).

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