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ACLU wins surveillance appeal

MahurinImmigration_Thumb_556.jpg
MahurinImmigration_Thumb_556.jpg

A three judge panel of the 2nd Circuit Court of Appeals has overturned a lower court ruling and granted standing to a coalition of human rights groups suing the government over the 2008 FISA amendments.

You can read the full ruling here.

The ACLU filed suit against various provisions of the 2008 FISA Amendments Act, which amended the Foreign Intelligence Surveillance Act and legalized many of the surveillance actions President Bush had already undertaken in violation of the original law, on behalf of groups like Amnesty International and Human Rights Watch.

Specifically, the bill allows the National Security Agency to engage in wholesale data mining of electronic messages both within the United States and between the U.S. and other countries without a warrant and with very little judicial oversight. The plaintiffs argue that this unconstitutionally interferes with their need to communicate confidentially with individuals overseas.

The problem in such cases has always been establishing standing to sue because the courts have generally required that the plaintiffs show that their communications have actually been intercepted. But since the entire program is classified, it’s impossible to prove such a thing. And in this case, the district court dismissed the case on the grounds that the plaintiffs could not prove standing.

But the appeals court rejected that position and granted the plaintiffs sanding to sue, saying:

On appeal, the plaintiffs argue that they have standing because the FAA’s new procedures cause them to fear that their communications will be monitored, and thus force them to undertake costly and burdensome measures to protect the confidentiality of international communications necessary to carrying out their jobs. Because standing may be based on a reasonable fear of future injury and costs incurred to avoid that injury, and the plaintiffs have established that they have a reasonable fear of injury and have incurred costs to avoid it, we agree that they have standing.

The ACLU called this ruling “a huge victory for privacy and the rule of law.” And if upheld, it could prove to be a real turning point in the legal battle over the limits of the 4th amendment. For only the second time in the dozens of court cases that have been filed in federal court challenging the NSA’s post-9/11 wiretapping program, the plaintiffs have been granted standing to sue (the other is the Al-Haramain case in California, where the government accidentally turned over a document showing that the plaintiffs had been wiretapped; that case is still working its way through the 9th Circuit courts).

The government is sure to appeal this ruling. In a previous case filed in the U.S. Circuit Court for the Eastern District of Michigan, ACLU v NSA, the district judge granted standing to a similar group of plaintiffs but the 6th Circuit Court of Appeals overturned that ruling and the Supreme Court denied cert in an appeal. The conflict between the two circuits may force the Supreme Court to hear the appeal of this case and make a final determination on the standing question.

If this ruling remains in force, it means the plaintiffs get to go back to the district court for a full trial on the central question of whether the NSA’s data mining program is constitutional. The government would almost certainly then ask for a dismissal again on the grounds of the State Secrets Privilege and that likely restarts the entire appeals process again before the case can ever be judged on its merits.

But for now, ACLU Deputy Legal Director Jameel Jaffer is optimistic.

“The government’s surveillance practices should not be immune from judicial review, and this decision ensures that they won’t be,” Jaffer said in a press release. “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. Now that the appeals court has recognized that our clients have the right to challenge the law, we look forward to pressing that challenge in the trial court.”

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