The ACLU FISA Lawsuit: Deets

So now that we've actually filed the lawsuit (our uber-paralegal is on his way back to the office from the courthouse right now), here're the details on our lawsuit challenging the constitutionality of the just-signed-into-law FISA Amendments Act of 2008 (FAA):

  1. The defendants in our lawsuits (e.g. the people we're suing) are John (Mike) McConnell, Director of National Intelligence; Lt. Gen. Keith B. Alexander, Director of the NSA and Chief of the Central Security Service; and Michael Mukasey, Attorney General.
  2. We've filed the case in the U.S. District Court for the Southern District of New York.
  3. Our superstar roster of plaintiffs (e.g. the people and groups we're suing on behalf of) include The Nation magazine, journalists Naomi Klein and Chris Hedges, attorneys David Nevin, Scott McKay, Dan Arshack and Sylvia Royce, and a whole bunch of orgs that run the gamut from Amnesty International to the Global Fund for Women. (You can check out the full list of our plaintiffs online at
  4. Three of our main points:
    • The FAA violates the Fourth Amendment because it allows the government to gobble up the constitutionally protected communications of American citizens and residents without getting individualized warrants, and without specifying the time, place or length of the surveillance, and not specifying how the info gathered will be disseminated, or how long it'll be kept. (You know, the who/what/where/when/why.)
    • The FAA also violates the First Amendment by chilling lawful expressive speech without adequate justification by authorizing the government to intercept constitutionally protected communications without judicial oversight.
    • The challenged law violates the principle of separation of powers by allowing the government to continue surveillance activities even if the Foreign Intelligence Surveillance Court has deemed those activities illegal. (Good idea, right? Asking the government to obey the law?)

There you have it, folks. For the even-easier Cliffs Notes version, check out this video with Jameel Jaffer, Director of the ACLU's National Security Project, and two of our plaintiffs, talking about the case:

Privacy statement. This embed will serve content from
One thing we can't emphasize enough is that Congress has not only legalized the Bush administration's secret NSA spying program, it has given the government even more power to listen to our phone calls and read our emails than even the Bush administration illegally claimed for itself under its secret program. Everything you've ever wanted to know about the lawsuit—including a link to the complaint we just filed, for you lawyers and law-wonks—is available at CORRECTION: A previous version of this post incorrectly listed Naomi Wolf as a client in this lawsuit. Naomi Klein is a client. (Thanks Harry!)
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Daniel J. Schmitz

Not once in all the commentary is there one statement about the fact that the Constitution prohibits Ex Post Facto laws. To make a law that "retroactively" changes the law was correctly recognized to DESTROY the Rule of Law. If the Law does not mean what it says at the time it says because it can be Ex Post Facto changed then there is NO LAW....

That above all makes this law a GRAVE CRIME. The Democrats have shown themselves to be as bad as Bush and the Conservatives, what they are conserving I do not know because it isn't the Constitution, Obama unfit for any office and McCain a coward....

Michael Poce

I am glad someone is taking a stand on this as I find it difficult to think that anyone in this country (US Citizen that is) would want to sit back send an email to a friend that might be in a foreign country that the US considers a threat and have their name added to a long list of possible terrorists. As a collector of Police Patches I have had mail from foreign countries opened (these are letters mind you) that if scanned would have shown it was a police patch from that country and then sent on to me in the open state with no security taken to insure the contents were not lost. As a veteran and a Native American I find this invasion un called for when all that had to be done was to scan the envelope and see.
I applaud the ACLU on this fight for all Americans.


Why doesn't the A C L U gather up all of itS people and move to Iran?

Alvin McCuistion

I am continually saddened and astonished that Congress passes laws that they know, or should know, are at variance with the U. S. Constitution. The motto of the Congress in place for the past 8 years should be: 'We knew it was unconstitutional, but voted for it anyway.'

Mr. Reynolds

Office of the Inspector General

Semi-Annual Report to Congress (October 1, 2007-March 31, 2008)

During this reporting period, the OIG received 163 complaints involving the USMS. The most common allegations made against USMS employees included job performance failure, official misconduct and force, abuse, and rights violations. The OIG opened 10 investigations and referred other allegations to the USMS's Office of Internal Affairs for review.

At the close of the reporting period, the OIG had 22 open cases of alleged misconduct against USMS employees. The following is an example of a case involving the USMS that the OIG's Investigations Division handled during this reporting period:

An investigation by the OIG's San Francisco Area Office led to the arrest and guilty plea of a USMS supervisory deputy marshal on a charge of making a false statement. The investigation determined that the supervisory deputy marshal submitted an application for promotion to the USMS in which he falsely claimed he had a 4-year degree from a university and included false transcripts with the application. When interviewed, the supervisory deputy marshal admitted he purchased the degree and transcripts online from a "diploma mill" for $703. He subsequently retired from the USMS. Sentencing is pending.

I would appreciate it if my documented complaint of false statements made by employee's of the U.S. Marshals Service would merit the same attention & corrective action be taken immediately. Thank you.

I submitted legitimate allegations of illegal electronic surveillance of myself possibly being conducted by members of the U.S. Marshals Service to the U.S. Marshals Service Office of Inspection. I received a document from Yvonne Bonner the former Chief Inspector of the U.S. Marshals Service Office of Inspection stating that they would conduct an official investigation but "I would not be entitled to know the outcome due to privacy issues" not reflected by statute of law in violation of federal statute Title 50 > Chapter 36 > Subchapter I > § 1810 Civil liability.

After waiting over a period of thirty days I received no further communication from the U.S. Marshals Service at which time I contacted the office of the Hon. Senator Charles E. Schumer. His New York office submitted a request to the former Assistant Attorney General for the Office of Legislative Affairs U.S. Department of Justice requesting their direct response.

Hon. Senator Charles E. Schumer later received a response from the former Chief of the U.S. Marshals Service Office of Congressional Affairs John J. McNulty, III which contained false statements in violation of Title 18 > Part I > Chapter 47 > § 1001 Statements or entries generally & Title 18 > Part I > Chapter 73 > §§§ 1510, 1515, 1519 Obstruction of Justice. At which time he stated that the U.S. Marshals Service had not and would not investigate my allegations contradicting the previous letter from the U.S. Marshals Service internal affairs division. This was and is in violation of federal statute of law as well as U.S. Department of Justice policies & procedures. Title 18 > Part I > Chapter 19 > § 371 Conspiracy to commit offense or to defraud United States.

Thus making his statements absent of a rational connection between the facts found and the choice made. A clear error of judgment; an action not based upon consideration of relevant factors and so is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law or if it was taken without observance of procedure required by law 5 USC 706(2)(A). This was and is in violation of federal law as well as U.S. Department of Justice policies & procedures.

How is it legally possible that the Chief of the U.S. Marshals Service Office of Congressional Affairs contradicted the former Chief Inspector of the U.S. Marshals Service Office of Inspection in writing three times. Twice to a U.S. Senator who sits on the U.S. Senate Committee on the Judiciary Subcommittee on Crime & Drugs which has oversight of the U.S. Marshals Service & once to a U.S. Congressman & no corrective action has been taken whatsoever?

TITLE 5 > PART I > CHAPTER 7 > § 706
§ 706. Scope of review

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—

TITLE 18 > PART I > CHAPTER 1 > § 4
§ 4. Misprision of felony

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

TITLE 28 > PART IV > CHAPTER 85 > § 1361
§ 1361. Action to compel an officer of the United States to perform his duty

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

Yvonne Bonner is currently the Acting Marshal for the district of Boston & under investigation by the Office of the Inspector General for possible ethics violations involving a separate incident.



I have requested official federal oversight by the Senate and/or House of all parties concerned including myself. I am willing to testify in any U.S. federal court of law that my allegations are true to the best of my knowledge.

You can review detailed information as well as download the physical USDOJ documentation from & you can review further information at Thank you.

Helpful Harry

Correction needed: You have Naomi Wolf listed as a plaintiff, but it is actually Naomi Klein.

Confused in MI

I received the following assurance from my Congressman Mike Rogers (R) MI-08 that a warrant to carryout surveillance of US citizens is still required by the FISC. Below is an excerpt of an email I received from Mike Rogers in response to my communication urging him to vote against the FAA in it's current form.


So I can rest easy that my Fourth Amendment protection is still in place, right?

Why am I not resting easy about this?

Confused in MI

The above mentioned excerpt is here: "On June 20, 2008 with my support the House passed H.R. 6304, the FISA Amendment Act by a vote of 293 to 129. This legislation amends and extends the 1978 FISA bill until the year 2013. It is a true bipartisan triumph that both protects the civil liberties of Americans, and insures our safety as a nation. Building on the improvements made by the Protect America Act, it provides the tools the intelligence community needs to monitor foreign terrorists in foreign lands. As before, a FISC warrant is still required for surveillance directed at any U.S. citizen, even if they are traveling abroad. It also provides new oversight and accountability measures to ensure our constitutional civil liberties are never infringed upon."

David Elkins,Po...

Why not add to your list just some regular everyday people, who's communications maybe compromised along with your celebrity list to show how it effects everbody in this country.

David Elkins,Po...

Why not add to your celebrity list some everyday people who may be effected, to show it's not just a minority but a majority!


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