Supreme Court Will Hear ACLU Case Challenging Warrantless Wiretapping Law

The Supreme Court has just agreed to consider whether plaintiffs represented by the ACLU have the right to challenge the constitutionality of a controversial law that authorizes the National Security Agency to conduct dragnet surveillance of Americans’ international emails and phone calls.

At issue is an appeals court ruling that allowed the ACLU’s challenge to the law – called the FISA Amendments Act of 2008 – to move forward. Responding to today’s news, ACLU Deputy Legal Director Jameel Jaffer said:

The appeals court properly recognized that our clients have a reasonable basis to fear that the government may be monitoring their conversations, even though it has no reason to suspect them of having engaged in any unlawful activities. The constitutionality of the government’s surveillance powers can and should be tested in court. We are hopeful that the Supreme Court will agree.

And ACLU Legal Director Steven R. Shapiro said:

Given the importance of this law, the Supreme Court’s decision to grant review is not surprising. What is disappointing is the Obama administration’s effort to insulate the broadest surveillance program ever enacted by Congress from meaningful judicial review.

The ACLU filed the lawsuit in July 2008 on behalf of a broad group of attorneys and human rights, labor, legal and media organizations whose work requires them to engage in sensitive telephone and email communications with people outside the U.S., including colleagues, clients, sources, foreign officials and victims of human rights abuses. The plaintiffs include Amnesty International USA, Human Rights Watch, PEN American Center, The Nation and the Service Employees International Union. The Justice Department claims the plaintiffs should not be able to sue without first showing they have actually been monitored under the program – but it also argues that the government should not be required to disclose if plaintiffs have been monitored.

In March 2011, a three-judge panel of the U.S. Court of Appeals for the Second Circuit rejected that Catch-22 logic. The government’s request for reconsideration by the full Second Circuit was rejected in September by a 6-6 vote.

Little is known about how the FISA Amendments Act has been used. In response to a Freedom of Information Act lawsuit filed by the ACLU, the government revealed that every six-month review of the act had identified “compliance incidents,” suggesting either an inability or an unwillingness to properly safeguard Americans’ privacy rights. The government has withheld the details of those “compliance incidents,” however, including statistics relating to abuses of the act.

The act is scheduled to sunset in December. The ACLU is calling for amendments that would limit surveillance to suspected terrorists and criminals, require the government to be more transparent about how the law is being used and place stronger restrictions on the retention and dissemination of information that is collected.

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something under oath a case can change not only geahgopric jurisdiction, but also to a different class of courts? There is no determination to be made by the court; if it concerns the matter, the court is to take the AG at his word?Second, this doesn't direct the case to the FISC, it directs it to the FISCR a court which, I thought was a court of review not a court of original jurisdiction. How does a court with primarily review jurisdiction gain authority to determine cases on first instance? I understand this statute dictates it as such; but can a court, other than the Supreme Court, as dictated in the Constitution, have original and review jurisdiction? Does Article 3 Section 2, Clause 2 allow the congress to create such a court? Third, I'm not sure I follow how the FISC/R can be used in this manner at all the FISC is primarily a warrant authorizor and the FISCR is provided review jurisdiction. The courts are non-adversarial. How does the FISCR gain authority to determine the Constitutionality of a program if it is conducted in a non-adversarial manner? I understand that the court may, as it did with In Re Sealed, appoint a group to provide amicus briefs however, in a case testing the Constitutionality of a program, originally brought to a traditional court, where there are two parties (the government, and whoever brings suit) relegating that party to amicus whilst allowing the government to make a case seems a bit less than legit. What would be the standard for this court to base its decision? The Court is made to act as a judge would in an inquisitorial system a role assigned no other U.S. Judge. Yet in this situation, the government may provide a full argument, and must do so only above the arguments included in an amicus brief.

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