FISA 2008 Act is Unconstitutional, ACLU Tells Court
FOR IMMEDIATE RELEASE
CONTACT: media@aclu.org or acluofillinois@aclu-il.org
CHICAGO - Congress and the
Bush White House overstepped their constitutional authority and violated the
rights of millions of customers when they passed and approved legislation
granting sweeping immunity to telecoms that collaborated in illegal spying. That
assertion is contained in a court filing today by three California affiliates
and the Illinois affiliate of the American Civil Liberties Union and the
Electronic Frontier Foundation, along with other interested parties in cases
consolidated in the U.S. District Court for the Northern District of California.
The ACLU lawsuits filed on behalf of dozens of plaintiffs - including renowned
Chicago journalist Studs Terkel, former California Congressman Tom Campbell,
journalist Robert Scheer and actor Richard Belzer - challenge the unlawful
collaboration of major telecommunications' companies - including AT&T - with
the Bush Administration's warrantless dragnet surveillance of electronic
communications and records.
"Under our constitutional
system, Congress and the Executive Branch do not determine whether actions taken
by the Executive violate basic constitutional rights," said Harvey Grossman,
legal director for the American Civil Liberties Union of Illinois and co-lead
counsel for the cases combined in the San Francisco court. "Since Marbury v.
Madison, we have recognized that only court can determine the meaning of the
Constitution - it is simply not a power granted to the Congress and the
President."
This filing is in response to passage of the Foreign
Intelligence Surveillance Act Amendments of 2008 which mandate that courts
dismiss any cases against AT&T or other telecommunications' companies if the
Attorney General chooses to file a secret certification attesting that the
executive branch told the phone companies that the surveillance was lawful.
Under the immunity provisions, the federal court does not determine whether the
spying was in fact legal, but only that the representation of legality was made
by the executive branch. The Attorney General has filed such a certification in
these cases. This certification, according to the ACLU is not surprising, since
the Attorney General argued for immunizing the telecoms in public statements and
in testimony before the law was passed in public statements and in testimony
before Congress.
"It strains credulity to believe that the same
Attorney General who argued that immunity must be granted has fairly and
completely weighed the interests of our clients in making his decision to ask
the court to dismiss their case without determining whether any constitutional
rights were violated," said Ann Brick, staff attorney for the ACLU of Northern
California.
The brief filed today argues in its 1972
"Keith" decision, the Supreme Court ruled that domestic security surveillance
requires prior judicial approval in the form of a warrant. The effect of the new
immunity law is to overturn Keith and to dispense with this judicial gate
keeping and instead to substitute the opinion of the executive branch that the
spying is lawful. Thus, the Congress and the White House has unconstitutionally
encroached on the well-recognized authority of the courts to determine when a
constitutional violation has occurred.
"Instead of changing
the law as is its prerogative, Congress simply attempted to substitute a Bush
Administration interpretation of the Constitution for established law," said
David Blair-Loy, legal director of the ACLU of San Diego and Imperial Counties.
"This creates a clear and unquestionable violation of our fundamental principle
of separation of powers."
Another area of grave constitutional
concern for the ACLU is the FISA Amendments overly-broad grant of authority to
the Attorney General to censor what materials drawn from the government's
certification can be released in a public decision. The ACLU brief notes that
under the First Amendment - and separation of powers required by our
Constitution - only a court, not the Attorney General or Congress, can determine
what information can be presented in a decision related to a civil
proceeding.
"There is a critical First Amendment right
to ensure that the public can access materials filed with our courts," said
Peter Eliasberg, managing attorney of the ACLU of Southern California. "Courts
must decide what materials can be kept from the public, not a political
appointee like the Attorney General, who may be more interested in protecting a
particular Administration than the public's right to know."
A copy of the brief filed in the Northern District of California
in this matter can be found at www.eff.org/files/filenode/att/opposition101608.pdf