American Civil Liberties Union

In September 2011, the U.S. Court of Appeals for the Second Circuit denied the government's request that all of the court's judges rehear a lawsuit filed by the ACLU challenging the FISA Amendments Act (FAA), a law that gives the executive branch virtually unchecked power to collect Americans' international emails and telephone calls. The denial of rehearing allows the ACLU's lawsuit to proceed, upholding an unanimous March 2011 ruling by a three-judge panel that the plaintiffs have the right to challenge the constitutionality of the law.

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	Why the FAA is Unconstitutional
	FISA Timeline
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In July 2008, Congress passed the FAA of 2008, giving the National Security Agency (NSA) virtually limitless power to spy on Americans' international phone calls and emails. This controversial piece of legislation not only effectively legalized the secret warrantless surveillance program that President Bush had authorized in late 2001, it gave the NSA new power 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.

Less than twenty-four-hours after the bill was signed into law by President Bush the ACLU filed a lawsuit challenging the sweeping new spying power established by the FAA. The case, Amnesty v. Blair, was filed 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 individuals located outside the United States.

Timeline

July 2008: FISA Amendments Act of 2008 is signed into law by President Bush. The ACLU files a lawsuit in the U.S. District Court for the Southern District of New York challenging the constitutionality of the new law.

August 2009: The district court dismisses the lawsuit on "standing" grounds because plaintiffs could not prove with certainty that they had been spied on. The court's legal analysis would have the effect of placing the FAA – and other broad surveillance laws – permanently beyond the scope of judicial review.

October 2009: The ACLU appeals the district court's dismissal of the lawsuit.

December 2009: The ACLU files its principal brief on appeal.  "Friend-of-the-court" briefs in support of the ACLU are filed by the Brennan Center and other civil liberties and privacy groups; Reporters Committee for Freedom of the Press; the Association of the Bar of the City of New York; and a coalition of law professors.

March 2011: A federal appeals court reinstated the ACLU’s lawsuit challenging the FAA, ruling that the plaintiffs in the case could indeed challenge the FAA without first showing with certainty that they had been spied on under the statute.

September 2011: The Second Circuit Court of Appeals  denied the government's request for rehearing en banc, allowing the ACLU's challenge to the FAA to proceed.

(Formerly Amnesty et al. v. McConnell, Amnesty et al. v. Blair)