Court of Appeals reinstates FISA wiretapping case

Posted by AzBlueMeanie:

The Second Circuit Court of Appeals has reinstated a lawsuit challenging an eavesdropping law passed by Congress three years ago. Appellate Court Reinstates Lawsuit Challenging Wiretapping Powers – NYTimes.com:

In the lawsuit, one of the few remaining on the issue, the American Civil Liberties Union and other groups charged that the expanded surveillance powers granted by Congress in 2008 were unconstitutional and illegal.

A district judge in Manhattan had thrown out the lawsuit because he said that the plaintiffs failed to demonstrate they were actually spied upon and did not have legal standing to sue. But the Second Circuit Court of Appeals disagreed, allowing the lawsuit on Monday to move forward.

It found that the groups challenging the wiretapping law, including lawyers and journalists communicating with people overseas who might fall under terrorism investigations, had a reasonable fear that their international calls and e-mails would be monitored by the government.

While the appeals court did not rule on the merits of the case, the groups bringing the case said they were glad to be able to bring the legal substance of their challenge in court.

“I have always thought that we had a very strong argument,” said Jameel Jaffer, a lawyer for the American Civil Liberties Union. “The new law allows the government to engage in dragnet surveillance of Americans’ communication, and it makes the fourth amendment altogether irrelevant.”

The 2008 law passed by Congress, known as the FISA Amendments Act, followed a furious debate over the legality of then-President Bush’s secret eavesdropping program, and it gave intelligence agencies wide leeway to monitor international communications without direct court oversight.

And Congress did so ex post facto in an effort to impart legality to what everyone on both sides of the issue agreed had been done illegally without lawful authority under the Foreign Intelligence Surveillance Act (FISA) and in violation of the Constitution. Each separate intercept of electronic communications by the Bush administration prior to the pseudo-legality imparted by the FISA Amendments Act (2008) constitutes a separate chargeable felony violation. Conceivably, the felony violations total in the millions.

"The decision could put the Obama administration in the uncomfortable position of having to argue in support of broad executive authority to conduct surveillance operations – a position that President Obama, as a presidential candidate, had once opposed."

The Justice Department, which could seek a re-hearing in the Second Circuit to prevent the case from returning to the district court, had no comment on Monday.

While the federal agency under Mr. Obama has argued questions of legal standing in defending wiretapping lawsuits that began in the Bush administration, this would be the first time it has to argue the merits and legality of the executive branch’s spy powers, Mr. Jaffer noted. “It’ll be interesting to see what they do,” he said. “But I’m not that hopeful they’ll change their position.”

Nor am I hopeful. The Department of Justice will defend the legality of the FISA Amendments Act, an act of Congress, as is its obligation. I would expect an appeal from the Second Circuit to the U.S. Supreme Court.

We are a long way from a trial on the merits.