Today, the government asked the Supreme Court to overturn an appeals court ruling that allowed our lawsuit challenging the constitutionality of the 2008 FISA Amendments Act to go forward. That law gives the government unprecedented authority to monitor Americans’ international emails and phone calls.
The appeals court ruling, which was issued in March 2011, held that our case could forward, rejecting the administration’s arguments that the case should be dismissed because our clients could not prove their communications would be collected under the law.
Needless to say, we’re disappointed by the government’s filing today. ACLU deputy legal director Jameel Jaffer stated in a press release, “It’s crucial that the government’s surveillance activities be subject to constitutional limits, but the administration’s argument would effectively insulate the most intrusive surveillance programs from judicial review. The Supreme Court should leave the appeals court’s ruling in place and allow our constitutional challenge to proceed.”
We filed our suit less than an hour after the FISA Amendments Act was signed into law by President Bush in July 2008. The suit was filed 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. Our plaintiffs include Amnesty International USA, Human Rights Watch, The Nation, the Service Employees International Union and journalists Chris Hedges and Naomi Klein. The Justice Department claims that the plaintiffs should not be able to sue without first showing that they have been monitored under the program – information that the government refuses to provide.
The FISA Amendments Act is the most sweeping surveillance statute ever enacted by Congress. It allows dragnet surveillance of Americans’ international communications with none of the safeguards that the Constitution requires. Little is known about how the 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 2012, and we’re calling for amendments that would prohibit dragnet surveillance, 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.