NSA may face court challenge to warrantless wiretapping

http://bordc.org/newsletter/2011/10/index.php#law3

NSA may face court challenge to warrantless wiretapping

It may have taken nearly three years to bring the 2008 version of the Foreign Intelligence Surveillance Act (FISA) to the courts for judicial review, but now one case is set to move forward thanks to a ruling by the Second Circuit Court of Appeals. On September 21, the plaintiffs—the Global Fund for Women, The Nation magazine, Global Rights, International Criminal Defense Attorneys Association, PEN American Center, Human Rights Watch, Service Employees International Union, and others—backed by the American Civil Liberties Union (ACLU), were granted standing to sue the government for the surveillance measures under FISA in the case Amnesty International USA et al. v. James Clapper Jr. et al.

The Second Circuit Court came to a divided decision of 6-6 that gave the case standing. Judge Gerard E. Lynch said, "To reject the plaintiffs’ arguments not because they lack merit, but because we refuse to hear them, runs a much graver risk than whatever invasion of plaintiffs’ privacy might be occasioned by the surveillance authorized by the challenged statute."

Typically, the US government invokes the state secrets privilege—claims that the case would endanger national security by revealing classified information (though those claims are often suspect)—to block such litigation. In this case, the government challenged the plaintiffs’ standing, arguing that they could not prove they had been subject to NSA warrantless wiretaps—something they cannot prove precisely because such programs are so cloaked in secrecy. The ACLU, representing the group of plaintiffs, argued that the law caused them harm by forcing them to take undue measures to avoid government interception of their overseas communications.

The suit argues that provisions of FISA that allow for wiretapping of overseas communications without obtaining a warrant violate the Fourth Amendment, which protects against unwarranted searches and seizures. ACLU Deputy Legal Director Jameel Jaffer said, "The government’s surveillance practices should not be immune from judicial review."

Amnesty International USA v Clapper, Jr.   Amnesty International USA v Clapper, Jr.   Case No. 09-4112-cv (C.A. 2, March 21, 2011) Appellants – attorneys, journalists, and labor, legal, media, and human rights organizations – facially challenged the constitutionality of Section 702 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”), 50 U.S.C. § 1881a, which was added to FISA by Section 101(a)(2) of the FISA Amendments Act of 2008 (the “FAA”). The district court (John G. Koeltl, Judge) awarded summary judgment in favor of appellees, finding that appellants lacked standing. We conclude that on the facts accepted by appellees for purposes of summary judgment, appellants have established their standing to sue. Attorneys, journalists, and labor, legal, media, and human rights organizations brought this action facially challenging the constitutionality of Section 702 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”), which was added to FISA by Section 101(a)(2) of the FISA Amendments Act of 2008 (the “FAA”), and codified at 50 U.S.C. § 1881a. Section 702 creates new procedures for authorizing government electronic surveillance targeting non-United States persons outside the United States for purposes of collecting foreign intelligence. The plaintiffs complain that the procedures violate the Fourth Amendment, the First Amendment, Article III of the Constitution, and the principle of separation of powers because they “allow[] the executive branch sweeping and virtually unregulated authority to monitor the international communications . . . of law-abiding U.S. citizens and residents.” The merits of the plaintiffs’ claims are not before us. The only issue presented by this appeal is whether the plaintiffs are legally in a position to assert these claims in a federal court, not whether the claims are to any degree valid. Their merit is an issue for another court on another day. The district court (Koeltl, J.) granted the government summary judgment because it found that the plaintiffs lacked standing. 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. We therefore reverse the district court’s judgment. BACKGROUND I. Statutory Scheme at Issue In 1978, Congress enacted FISA to establish procedures under which federal officials could obtain authorization to conduct electronic surveillance for foreign intelligence purposes, including surveillance of communications between persons located within the United States and surveillance of communications between persons located within the United States and persons located outside the United States. See 50 U.S.C. §§ 1801(f), 1804(a)(6)(A). The 2008 FAA amends FISA. It leaves much of the preexisting surveillance authorization procedure intact, but it creates new procedures for the authorization of foreign intelligence electronic surveillance targeting non-United States persons located outside the United States. See id. § 1881a; see also 154 Cong. Rec. S227, 228 (daily ed. Jan. 24, 2008) (statement of Sen. Rockefeller) (“[W]e wanted to ensure that activities authorized by this bill are only directed at persons outside the United States. . . . For individuals inside the United States, the existing procedures under FISA continue to apply.”). The plaintiffs complain that the new procedures unlawfully permit broader collection of intelligence with less judicial oversight.

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