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Court Dismisses Lawsuit Challenging Unconstitutional Spying Law

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August 20, 2009

Today, a federal court today dismissed our lawsuit challenging the unconstitutional government spying law known as the FISA Amendments Act (FAA). Congress passed the law last year, effectively legalizing the secret warrantless surveillance program approved by President Bush in late 2001. The FAA also gave the government new, sweeping spying powers, including the power to conduct dragnet surveillance of Americans’ international emails and phone calls.

We filed our lawsuit last July — less than an hour after it was signed into law by then-President Bush 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, the district court judge dismissed the case because he ruled that plaintiffs could not prove with certainty that they had been spied on. The decision states, “[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.”

ACLU National Security Project Director and counsel in the case Jameel Jaffer stated in a press release:

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.

To learn more about our plaintiffs and the issues at stake, visit

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