Court Rules ACLU Can Challenge Bush Wiretapping Law

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A federal appeals court reinstated a landmark lawsuit challenging the Bush Administration’s abuse of the privacy of innocent Americans with amendments it pushed in the name of security after 9/11 to the Foreign Surveillance Act, a statute that gave the executive branch virtually unchecked power to collect international e-mails and telephone calls.

The American Civil Liberties Union filed the lawsuit on behalf of a broad coalition of attorneys and human rights organizations, labor groups, legal and media outlets whose 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.

In a statement today, ACLU Deputy Legal Director Jameel Jaffer call the ruling a huge victory for privacy and the rule of law.

“The government’s surveillance practices should not be immune from judicial review, and this decision ensures that they won’t be,” Jaffer said. “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.”


A federal district court dismissed the case in August 2009, ruling that the plaintiffs did not have the right to challenge the new surveillance law because they could not prove their own communications had been monitored.

But with the support of law professors, the NYC Bar Association, the Reporters’ Committee for Freedom of the Press and many others, the group appealed that decision to the Second Circuit Court of Appeals. The appeals court reversed the lower court decision Monday, finding that the plaintiffs have standing to challenge the law, even though they could not show to a certainty that the government was acquiring their communications.

“The FAA has put the plaintiffs in a lose-lose situation: either they can continue to communicate sensitive information electronically and bear a substantial risk of being monitored under a statute they allege to be unconstitutional, or they can incur financial and professional costs to avoid being monitored,” Jaffer said, according to Monday’s ruling,. “Either way, the (law) directly affects them.”

© 2011, Glynn Wilson. All rights reserved.

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