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Obama Administration Moves to Have Supreme Court Throw Out FISA Amendments Act Challenge

The Obama Administration wants the Supreme Court to dismiss an American Civil Liberties Union (ACLU) challenge to the Foreign Intelligence Surveillance Act (FISA) Amendments Act, an act passed in 2008 that ACLU attorneys contend “allows dragnet surveillance of Americans’ international communications with none of the safeguards that the Constitution requires.” It filed a petition to the Court asking for an appeals court ruling that permits the ACLU to challenge the law to be overturned.

The Justice Department (DoJ) argues that the plaintiffs in the challenge do not properly establish there could be any “imminent” or “future injury” from an “acquisition” of communications. The DoJ does not find the fear that plaintiffs might have their communications acquired abroad credible because there are other means available for acquiring communications of people outside the United States and they may not use authority granted to the government under the FISA Amendments Act. And, finally, the DoJ does not think that plaintiffs had sustained any “present injury” from “fear that the government will intercept their communications.”

The ACLU’s challenge specifically focuses on section 702(a), which allows the Attorney General and Director of National Intelligence to “authorize jointly, for a period of up to 1 year from the effective date of authorization, the targeting of person reasonably believed to be located outside the US to acquire foreign intelligence information.”

The ACLU contends the provision “does not require the government to demonstrate” that the “surveillance targets are foreign agents, engaged in criminal activity or connected even remotely to terrorism,” when seeking to obtain a “mass acquisition order.” The government can get such an order “without identifying the people (or the group of people) to be surveilled; without specifying the facilities, places, premises or property to be monitored; without obtaining individualized warrants based on criminal or foreign intelligence probable cause and without even making a prior administrative determination that the acquisition relates to a a particular agent or a particular foreign power.” Thus, it is unconstitutional and permits warrantless wiretapping.

According to the ACLU, in March 2011 “a three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled that the plaintiffs do, in fact, have the right to challenge the constitutionality of the law.” And, “in September, the full Second Circuit rejected the government’s request for reconsideration of that ruling.”

The following (in addition to the ACLU) are pushing this challenge: Amnesty International USA; Global Fund for Women; Global Rights; Human Rights Watch; International Criminal Defence Attorneys Association; The Nation Magazine; PEN American Center; ServiceEmployees International Union; Washington Office on Latin America.

Journalist Naomi Klein, reporter for The Nation, is a plaintiff. She supports the challenge because it endangers her “professional contacts.”

I frequently send emails and call to foreign countries, simply staying in touch with friends whom I have met in my travels. For example, I email an Iraqi woman who served as one of my translators. At one point her brother had been detained because of his political activity in Iraq. Her brother is a member of a Sunni political group and at one point he had been detained. She and I corresponded about her brother, why he was being held and what to do about it. I worried that these conversations might also put her at risk if U.S. surveillance continues to be conducted without meaningful oversight.

Defense attorneys Scott McKay and David Nevin are signed on as plaintiffs too. They worry confidential communications with clients are currently in jeopardy:

…We have recently joined the ACLU’s John Adams Project, which was formed to assemble civilian defense teams to assist in the representation of Guantanamo detainees at their military commissions. As part of that Project, we have offered to represent Khalid Sheikh Mohammed, whom the government accuses of masterminding the 9/11 attacks. Our offer of representation has required us to be in regular correspondence with Mohammed’s military defense counsel and to visit Guantanamo on more than one occasion. Our work may require us to correspond with potential witnesses about sensitive information, making us even more susceptible to improper government surveillance…

When President Barack Obama was running for election in 2008, he voted for the FISA Amendments Act. Though he had offered criticism of the National Security Agency’s (NSA) warrantless wiretapping program, he claimed the Act, “firmly” reestablished “basic judicial oversight over all domestic surveillance.” He said, “Given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay.”

That was not all too different from then-President George W. Bush, who stated, the bill “allows our intelligence professionals to quickly and effectively monitor the plans of terrorists abroad, while protecting the liberties of Americans here at home.” That is why the ACLU concluded in its report on how the Obama Administration had fared on civil liberties during its first 18 months:

…[C]andidate Obama made clear that his objection was not to warrantless surveillance, but rather to warrantless surveillance without congressional approval. And over the last eighteen months, President Obama’s administration has defended the FISA Amendments Act in the same way that the last administration did so: by insisting that the statute is effectively immune from judicial review.

The request to dismiss the challenge shows nothing has changed. Obama does not want the Supreme Court to hear the ACLU’s challenge. He does not want to risk the Court determining any part of the FISA Amendments Act is unconstitutional. That is why the Justice Department is asking the Supreme Court to overturn an appeals court ruling that kept the ACLU’s challenge alive.

The FISA Amendments Act expires on December 31 of this year. Congress will have to go through the motions of considering renewal. The charade will likely bear a striking similarity to the charade citizens witnessed when the PATRIOT Act was renewed in May of last year.

Liberals were largely silent. Congressional leadership fought to shut down any debate in the House or Senate. A few Senate Democrats like Sen. Mark Udall and Sen. Ron Wyden and a Republican, Senator Rand Paul, raised objection and tried to amend the PATRIOT Act. They even tried to block certain measures. But, the senators were unable to stop the bill from ultimately being signed.

The overwhelming bipartisan national security consensus is that the FISA Amendments Act is necessary to stop any threats to the American homeland. That assertion does not come with any concern for whether it allows for warrantless wiretapping or not. The consensus is FISA and all amendments are on the whole good tools to have for fighting “terrorism,” despite any unconstitutional imperfections.

It is an election year. The Obama Administration could wait until after the election or it could bring the Act up for renewal before. Either way, warrantless wiretapping will not be made an issue by anyone other than Ron Paul or those presidential candidates running in the election, who aren’t Obama, Newt Gingrich, Rick Santorum or Mitt Romney. So, the Administration has nothing to fear.

The liberals, who have the ability to make this an issue because Obama needs them to win re-election, won’t make this an issue if the renewal of the Act is brought up for a vote during the summer or fall. They are just as gutless and timid as Obama when it comes to taking political risks. If they made it an issue, they would be whipped into shutting up like they were when health reform was being passed and single-payer health care then the public option were taken off the table.

The courts are one of the few hopes America has for keeping civil liberties from being fully eviscerated. But, since the Obama Administration doesn’t want to permit judicial review, there isn’t much hope of the judicial branch being able to act as a proper check to executive power. And so, the policies of the Bush Administration that were condemned as being hallmarks of an imperial presidency are destined to continue, especially since those, who are well aware of the perils and pratfalls of the Act, stay silent and do nothing and let the Obama Administration go unchallenged.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."