ONE COURT’S CATCH-22

By William Fisher

Last August, a federal judge threw out a lawsuit challenging the government’s right to spy on Americans' international e-mails and telephone calls without warrants or suspicion of any kind, because the folks who brought the suit couldn’t prove what may be unprovable.

The original lawsuit was filed by the American Civil Liberties Union last July on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations. The suit sought to stop the government from conducting surveillance under the FISA Amendments Act (FAA), which gives the executive branch virtually unchecked power to collect Americans' international e-mails and telephone calls.

The plaintiffs' argued that their work requires them to engage in sensitive and sometimes privileged telephone and e-mail communications with colleagues, clients, journalistic sources, witnesses, experts, foreign government officials and victims of human rights abuses located outside the United States. They said they should be allowed to challenge the law because there was a high likelihood that their communications would be monitored under the law in the future, and because it had forced them to take “costly and burdensome” measures to protect the confidentiality of their communications.

But the judge, John G. Koeltl of the Southern District of New York, dismissed the case, ruling that the plaintiffs did not have “standing” to challenge the new surveillance law because they could not prove with certainty that their own communications had been monitored.

Last week, the ACLU asked an appeals court to overturn Judge Koeltl’s decision. Jameel Jaffer, Director of the ACLU National Security Project, said, "To say 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 prove what the court says is required.”

The ACLU position is that judicial review is necessary because the plaintiffs have been, and continue to be, injured by what it calls “the unconstitutional spying statute.”

“Because the plaintiffs engage in international communications that the government is likely to intercept under the new statute, they face a serious risk that the confidentiality of their sensitive and confidential communications will be compromised,” the ACLU says.

As a result, it adds, the plaintiffs have been forced "to take costly and burdensome measures to protect the privacy of their communications," including making international trips to collect information that they previously would have exchanged by phone or e-mail. The risk of government interception is especially burdensome for the plaintiffs who are attorneys, according to the brief, because they are ‘ethically required by codes of professional conduct’ to protect the confidentiality of their communications.” The ACLU also argues that, if endorsed by the appeals court, the lower court's ruling would permanently insulate many surveillance laws from judicial review.

"Allowing this case to move forward is essential to protecting innocent Americans' e-mail and telephone communications from dragnet, suspicionless government monitoring," says Jaffer. "Without court oversight, individual privacy rights are left to the mercy of the political branches. The courts have not only the authority but also the obligation to ensure that individual rights are not trampled by overbroad surveillance laws,” he asserts.

"If Americans are prohibited from challenging the FAA unless they can show that their own communications have been collected under it, the law may never be subject to judicial review at all. The appellate court should overturn the lower court ruling and allow this challenge to go forward."

In November, the ACLU filed a Freedom of Information Act (FOIA) request for records related to the implementation of the new law, including reports indicating how the FAA is being interpreted and used, how many Americans are affected by this sweeping spying regime and what safeguards are in place to prevent abuse of Americans' privacy rights. The FOIA request seeks records from the National Security Agency, the Justice Department, the Director of National Intelligence and the Inspector Generals at each of these agencies. The government has not yet released any of the records requested.

In July 2008, the FISA Amendments Act of 2008 (FAA) was signed by then-President George W. Bush, who admitted that, in the wake of the terrorist attacks of September 11, 2001, he had authorized intelligence agencies to disregard the FISA law and conduct warrantless wiretaps. Bush then asked Congress to, in effect, make the practice lawful.

The FAA was presented as a way of “updating” the Foreign Intelligence Surveillance Act (FISA). But according to the ACLU, “the law meant to ‘update’ FISA instead gutted the original law by eviscerating the role of the judicial oversight in government surveillance. The law also gave sweeping immunity to the telecommunications companies that aided the Bush administration’s unconstitutional warrantless wiretapping program by handing over access to our communications without a warrant.”

The ACLU lawsuit was filed on the same day the FAA was signed into law.

Critics have asserted that the Administration's warrantless spying program is a violation of the Fourth Amendment to the United States Constitution against warrantless search and a criminal violation of FISA. The Fourth Amendment to the U.S. Constitution prohibits searches and seizures without a court order and probable cause.

Until Congress enacted the FAA, FISA generally prohibited the government from conducting electronic surveillance without first obtaining an individualized order from the FISA court. The new law gave the court established by FISA an extremely limited role in overseeing the government’s surveillance activities.

The Foreign Intelligence Surveillance Act (FISA), born after the Watergate scandal, establishes how the government can secretly eavesdrop on Americans in their own country in intelligence investigations. It was originally passed to allow the government to collect foreign intelligence information involving communications with "agents of foreign powers."

This is not the first time Congressional action has impacted FISA. The USA Patriot Act, passed in 2001 and re-authorized in 2006, amended FISA to make it easier for the government to obtain the personal records of ordinary Americans from libraries and Internet Service Providers, even when they are not suspected of having connections to terrorism.

Several provisions of the Patriot Act are due to expire at the end of this year, and Congress is currently considering changes to these provisions.

The Foreign Intelligence Surveillance Act (FISA) was introduced in 1977 by Senator Edward M. Kennedy of Massachusetts and signed into law by President Jimmy Carter in 1978.

The act resulted from extensive investigations by Senate Committees into the legality of domestic intelligence activities. These investigations were led separately by Sam Ervin and Frank Church in 1978 as a response to President Richard Nixon’s use of federal resources to spy on political and activist groups, which violates the Fourth Amendment to the U.S. Constitution.

The act was created to provide Judicial and congressional oversight of the government's covert surveillance activities of foreign entities and individuals in the United States, while maintaining the secrecy needed to protect national security. It allowed surveillance, without court order, within the United States for up to one year unless the "surveillance will acquire the contents of any communication to which a United States person is a party". If a United States person is involved, judicial authorization was required within 72 hours after surveillance begins.

The Act returned to public prominence in December 2005 following publication by The New York Times of an article that described a program of warrantless domestic wiretapping ordered by the Bush administration and carried out by the National Security Agency (NSA) since at least 2002.