ACLU, others greet Bush FISA bill signing with new lawsuit

By Julian Sanchez

President Bush's signature had barely dried on the FISA Amendments Act, which the Senate approved Wednesday, when the American Civil Liberties Union announced that it would mount a constitutional challenge to the new law, claiming that it violates the First and Fourth Amendments. The group also filed a motion with the secretive Foreign Intelligence Surveillance Court, requesting that proceedings and rulings on the constitutionality of the FAA be made public.

On a conference call with reporters Thursday afternoon, ACLU lawyers said they had filed suit in the US District Court for the Southern District of New York on behalf of an array of plaintiffs. This included a panoply of human rights organizations, prominent defense attorneys, and journalists like Chris Hedges and Naomi Klein of The Nation.

One of the most difficult aspects of challenging secret surveillance law is proving standing to sue, as the National Security Agency does not make a habit of notifying targets that they are being wiretapped. The ACLU therefore hopes to demonstrate that its plaintiffs are harmed, and their First Amendment activities chilled, by the very existence of a law whose "effect and... main purpose," in the words of attorney Jameel Jaffer, "is to give the government unfettered access to the international communications of US citizens and residents."

Hedges and Klein, along with Robert Atwood of the Washington Office on Latin America and Dale Needles of the International Fund for Women, all stressed that their work required communication with overseas parties who were often in conflict with their own governments, and who would be leery of speaking with US reporters and activists if their conversations were at greater risk of being intercepted. Hedges said that his own sources, including one close to Hamas, had already become more reluctant to speak with him openly. He also cited his experience working under authoritarian regimes abroad, when he was trailed or bugged as a matter of course. "The purpose of that was to prevent any dissidents, anybody who had information that countered the government line or the government version of events, to make contact with me," said Hedges. "I have little doubt that the passing of this FISA bill essentially brings this type of surveillance system, and the effectiveness of that system, to the United States."

The ACLU has tried this approach before, however, and has been rebuffed by the court. The group won an initial victory in a 2006 suit over warrantless NSA surveillance, but that ruling was overturned by the Sixth Circuit Court of Appeals, which held that the purported chiling effect was too inchoate to ground a claim of standing. The Supreme Court declined to hear the case. But Jaffer believes that this time, things will be different. He notes that the present suit concerns a public statute, rather than a covert program, attenuating barriers to litigation posed by the state secrets privilege. Jaffer also argues that the Sixth Circuit ruling, on a 2–1 vote, runs contrary to other jurisprudence on standing, and that another court might well be disposed to rule differently.

Lawyers have also filed a motion with the Foreign Intelligence Surveillance Court, explained the ACLU's Melissa Goodman, making four requests for transparency. In the event of proceedings that might yield significant interpretations of the FAA, or rulings on its constitutionality, the motion asks that the FISC notify the public, that it allow ACLU to file briefs and participate in the arguments, that it require the government to file a public version of its own legal briefs, and that the Court issue a public version of any ruling. "Otherwise," said Goodman, "we will literally never know how the FISA court interprets the new law. The idea that we could have a secret body of Constitutional Law is more Kafka than America."

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