Judge Says Challenge to Bush Wiretapping Law May Proceed

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March 31, 2011

On March 21, 2011 a federal appeals court reinstated a lawsuit challenging the legal authority for U.S. intelligence agencies to conduct widespread electronic surveillance without court approval. The American Civil Liberties Union (ACLU) and other groups had filed the lawsuit in July 2008 in response to the expanded surveillance powers authorized by the FISA Amendments Act (FAA). The lawsuit overturns a lower court's 2009 ruling that said the ACLU had failed to demonstrate that they were actually spied upon and therefore did not have legal standing to maintain the lawsuit. The Justice Department may seek a re-hearing, in order to prevent the case from going to trial.

The Second Circuit Court of Appeals ruling was welcomed by the ACLU and
other civil liberty advocates. “The government's surveillance practices should not be immune from judicial review, and this decision ensures that they won't be," Jameel Jaffer, the ACLU's deputy legal director, said in a statement. "The law we've challenged permits the government to conduct dragnet surveillance of Americans' international communications, and it has none of the safeguards that the Constitution requires." 
Congress passed FAA in late 2008, effectively legalizing the warrantless surveillance of U.S. organizations and residents that had been started in 2001. It granted the government virtually unchecked authority to listen to international phone calls and read emails of U.S. citizens without obtaining a Foreign Intelligence Surveillance Act (FISA) court’s permission. The lawsuit was filed because the ACLU and others were concerned that that their international calls and e-mails were being monitored by the government.
In 2009 the lawsuit was thrown out by District Judge John Koeltl. He had dismissed the challenge because they ACLU could not prove that the government had eavesdropped on their calls. The appeals court rejected this claim and said in its ruling, the plaintiffs “have established that they reasonably fear being monitored under the allegedly unconstitutional (law), and that they have undertaken costly measures to avoid it.”  The appeals court, however, did not rule on the merits of the case, saying the ruling “does not mean that their challenge will succeed; it means only that the plaintiffs are entitled to have a federal court reach the merits of their challenge.” 
A spokesperson for the Justice Department had no comment about the decision.
This decision comes months after the December 2010 ruling in another case that ordered the government in December 2010 to pay legal fees and damages for illegally spying on a U.S. charity. Nine months after ruling that the government had conducted “unlawful surveillance” of phone calls between leaders of the now defunct Al-Haramain Islamic Foundation (Al- Haramain) and two of its U.S. attorneys, U.S. District Court Judge Vaughn Walker awarded $20,400 to the attorneys. He also awarded $2.5 million in attorney’s fees to their lawyers.  The government is appealing the decision.