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NEW YORK – The U.S. Supreme Court will hear oral arguments Monday on whether plaintiffs represented by the American Civil Liberties Union have the right to challenge the constitutionality of the 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.
“This law clearly intrudes on constitutionally protected privacy and free speech rights, and the courts have not just the authority but the obligation to intervene,” said Jameel Jaffer, ACLU deputy legal director, who will appear before the justices. “The Court of Appeals rightly held that our clients have the right to challenge the law, because the substantial risk that their communications will be monitored under it has compelled them to take costly measures to protect information that is sensitive. We are hopeful that the Supreme Court will agree with the Court of Appeals that the constitutionality of the government’s surveillance powers can and should be tested in court.”
A broad range of ten organizations filed friend-of-the-court briefs in support of the ACLU’s position, including groups representing lawyers, journalists and gun owners.
The ACLU filed the lawsuit in July 2008 on behalf of a coalition 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. They include colleagues, clients, sources and victims of human rights abuses. The plaintiffs include Amnesty International USA, Human Rights Watch, The Nation, PEN American Center and the Service Employees International Union. The Justice Department claims they 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 whether plaintiffs have been monitored.
In March 2011, a three-judge panel of the U.S. Court of Appeals for the Second Circuit rejected that obstructive tactic. The government’s request for reconsideration by the full Second Circuit was rejected the following September.
The act is scheduled to sunset in December. The ACLU is calling for amendments that would limit surveillance of Americans 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 about innocent Americans.
The ACLU’s brief is at:
More information on the case is at: