Dismissal Of ACLU Challenge To Unconstitutional Spying Law Jeopardizes Americans' Privacy

August 20, 2009

Court Dismisses Lawsuit Challenging FISA Amendments Act

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

NEW YORK – A federal court today dismissed an American Civil Liberties Union lawsuit challenging an unconstitutional government spying law. The ACLU and the New York Civil Liberties Union filed the landmark lawsuit in July 2008 to stop the government from conducting surveillance under the FISA Amendments Act (FAA), which gives the executive branch virtually unchecked power to sweep up Americans' international e-mails and telephone calls.

The ACLU filed the lawsuit on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations whose ability to perform their work – which relies on confidential communications – is greatly compromised by the FAA.

Although the government does not generally have to reveal who it spies on under the highly secretive FAA, U.S. District Court Judge John G. Koetl of the Southern District of New York dismissed the case because plaintiffs could not prove with certainty that they had been spied on, writing "[t]he plaintiffs' failure to show that they are subject to the FAA in any concrete way is sufficient to conclude that the plaintiffs lack standing to challenge the FAA."

The FISA Amendments Act of 2008 effectively legalized the secret warrantless surveillance program approved by President Bush in late 2001. It also gave the government sweeping new spying powers, including the power to conduct dragnet surveillance of Americans' international communications.

The following can be attributed to Jameel Jaffer, Director of the ACLU National Security Project:

"We are disappointed by today's ruling, which will allow the mass acquisition of Americans' international e-mails and telephone calls to continue unchecked. To say, as the court says, 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 make the showing that the court says is required. 

"The court's decision effectively means that Americans' privacy rights will be left to the mercy of the political branches. This is deeply troubling, because the courts have a crucial role to play in ensuring that individual rights are not needlessly infringed upon by statutes enacted in the name of national security.
 
"While today's decision is disappointing, it's important to emphasize that the court did not uphold the legality of the FAA. Instead, it simply refused to reach the issue. We are considering the options available to us, including a possible appeal. In the meantime, it is now more important than ever for Congress to engage in meaningful oversight of executive spying."

Plaintiffs in the case, now called Amnesty v. Blair, are:

• The Nation and its contributing journalists Naomi Klein and Chris Hedges
• Amnesty International USA, Global Rights, Global Fund for Women, Human Rights Watch, PEN American Center, Service Employees International Union, Washington Office on Latin America and the International Criminal Defence Attorneys Association
• Defense attorneys Dan Arshack, David Nevin, Scott McKay and Sylvia Royce

Attorneys on the case are Jaffer, Melissa Goodman and Larry Schwartztol of the ACLU National Security Project; Christopher Dunn and Arthur Eisenberg of the NYCLU; and Charles S. Sims, Theodore K. Cheng, and Matthew J. Morris of Proskauer Rose LLP.

Today's decision is available online at: www.aclu.org/safefree/nsaspying/40801lgl20090820.html

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