Or at least it shouldn't be. Today we filed an appeal of our lawsuit challenging the constitutionality of the FISA Amendments Act (FAA), the law passed last summer that essentially legalized former President Bush's warrantless wiretapping of Americans' international phone calls and emails. In August, U.S. District Court Judge John G. Koeltl for the Southern District of New York dismissed our case on "standing" grounds, ruling that the plaintiffs — among them journalists, lawyers and nongovernmental organizations who engage in sensitive international communication which they have reason to fear will be intercepted by the government — 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.
But here's the rub: the government conducts surveillance under the statute in secret, and it's not obligated to notify the people it has monitored. So it's possible no one could ever show with any certainty that they've been monitored. As Jameel Jaffer, Director of the ACLU's National Security Program, points out in a statement today:
To say that plaintiffs can't challenge this statute unless they can show that their own communications have been collected under it is to say that this statute may not be subject to judicial review at all. 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 what the court says is required.
So there you have it: if no one can prove they've been spied on, then no one can challenge the law. That gives the executive branch unchecked power, and makes the FAA above judicial scrutiny. That's unconstitutional.