ACLU and allies file lawsuit to challenge surveillance law

Critics charge that the law undermines the Fourth Amendment

The American Civil Liberties Union (ACLU) and several other groups have filed a lawsuit in an effort to strike down a new law allowing the U.S. government to intercept the phone calls and e-mail messages of people with suspected ties to terrorism.

The ACLU, Amnesty International, Human Rights Watch and other groups filed the lawsuit in U.S. District Court for the Southern District of New York on Thursday, the same day that President George Bush signed the Foreign Intelligence Surveillance Act (FISA) Amendments Act (download PDF).

The new law, approved by the U.S. Senate on Wednesday, allows the U.S. National Security Agency and other intelligence agencies to conduct surveillance of a wide range of people "reasonably believed" to be outside the U.S. The law also will likely require a U.S. court to dismiss more than 40 lawsuits that have been filed against telecommunication carriers that allegedly participated in the NSA program before there was court oversight of the surveillance.

The FISA Amendments Act still allows broad, untargeted surveillance, including spying on U.S. residents who are talking with people overseas, said Jameel Jaffer, director of the ACLU National Security Project.

The law allows the "massive acquisition of U.S. citizens' and residents' international communications," Jaffer added. "It permits the government to conduct intrusive surveillance without ever telling the court who it intends to surveil, what phone lines or e-mail it intends to monitor, where the surveillance targets are located, or why it is conducting the surveillance."

The new law violates the Fourth Amendment of the U.S. Constitution, prohibiting the government from unreasonable searches and seizures, the ACLU said.

The Bush administration operated the so-called Terrorist Surveillance Program in secret for about four years before media reports brought it to light in December 2005. The program allowed the NSA, without court-issued warrants, to conduct surveillance of phone calls and e-mails of people with suspected ties to terrorism, including U.S. residents talking to overseas suspects.

Advocates of the FISA Amendments Act say the law creates court oversight of the surveillance program and makes it difficult for the NSA to target U.S. citizens unless under a court-issued warrant. The bill also makes clear that U.S. surveillance programs must be monitored by the U.S. FISA Court, said supporters, including Sen. Kit Bond, a Missouri Republican and vice chairman of the Senate Intelligence Committee.

The law was "absolutely essential" to protect the U.S. against terrorism, Bond said on the Senate floor this week. Critics who say the new law will allow unrestricted surveillance of U.S. residents are "just plain, flat wrong," he added.

But the ACLU and other groups filing Thursday's lawsuit disagreed.

Author and journalist Chris Hedges, former Middle East bureau chief for The New York Times, said the FISA Amendments Act will make it difficult for journalists, especially those who report on overseas issues, to do their jobs. One of Hedges' sources has already cut off contact for fear that Hedges' communications are wiretapped, he said.

The new law makes the U.S. no different from dictatorial regimes that spy on their citizens, added Hedges, who now writes for the magazine The Nation, which is among the plaintiffs in the ACLU lawsuit.

"The power of this surveillance can essentially shut down the ability of whistle-blowers, human-rights activists, dissidents, true-tellers and people with a conscience to rise up and speak against the audacity of those in power," Hedges said. "With that gone, we take a giant step toward fascism."

The ACLU also filed a motion with the U.S. FISA Court, which normally conducts its business in secret, to conduct any hearings it might have on the constitutionality of the FISA Amendments Act to be open to the public. The FISA Court may have to address the constitutionality or the scope of the new law, said Melissa Goodman, an attorney with the ACLU's National Security Project.

"No one, not even members of Congress, seems to truly understand precisely how much power this law gives the government," Goodman said.

In July 2007, the U.S. Court of Appeals for the 6th Circuit threw out a similar lawsuit against the surveillance program brought by the ACLU. The court ruled that the plaintiffs, including academics, lawyers and journalists, didn't have standing to sue the government because they couldn't demonstrate they were targeted by the secret program.

The new lawsuit has a better chance because there's a law outlining the program that can be challenged, ACLU officials said.

Copyright © 2008 IDG Communications, Inc.

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