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Lawsuit Against NSA Warrantless Wiretapping Heads to Supreme Court

A law that legalized warrantless wiretapping conducted by the National Security Agency (NSA) will be argued at the United States Supreme Court in October. The lawsuit will be heard by the Supreme Court in October. The law—the Foreign Intelligence Surveillance Amendments Act (FAA)—is already on its way to being reauthorized by Congress, since the House of Representatives voted for reauthorization last week.

The ACLU filed its brief on September 17. Ateqah Khaki of the ACLU described in a post:

The Foreign Intelligence Surveillance Act – FISA – is a post-Watergate statute that was meant to rein in and regulate domestic surveillance undertaken in the name of national security. In 2008, Congress amended the statute, giving the National Security Agency unprecedented power to conduct dragnet surveillance of Americans’ international communications. The ACLU immediately challenged the law, but the government has tried to keep our case out of court.

In the brief, the ACLU argues, “By dispensing with FISA’s principal limitations, the FAA exposes every international communication—that is, every communication between an individual in the United States and a non-American abroad—to the risk of surveillance.” It outlines how the FAA, unlike FISA, authorizes surveillance that is “not predicated on probable cause or even individualized suspicion.”

Obtaining an order under section 1881a does not require the government to demonstrate to the FISA Court that its surveillance targets are terrorists, agents of foreign powers, or suspected criminals. Indeed, it does not require the government to identify its surveillance targets at all.

Government also, according to the ACLU, does not have to  “identify the facilities, telephone lines, email addresses, places, premises, or property at which its surveillance will be directed. This means the government can conduct “direct surveillance” at “various facilities without obtaining a separate authorization for each one.” It can direct its surveillance through “gateway” switches, “hrough which flow the communications of millions of people, rather than at individual telephone lines or email addresses.”

Noteworthy are the plaintiffs in the lawsuit being brought by the ACLU. Two criminal defense attorneys, Scott McKay & David Nevin, are plaintiffs. Both have defended accused terrorists and Nevin is currently defending Khalid Sheikh Mohammed, allegedly involved in 9/11 attacks. Sylvia Royce is a defense attorney, who has represented prisoners at Guantanamo Bay. Human Rights Watch, the Washington Office on Latin America (WOLA) and journalists Chris Hedges and Naomi Klein and The Nation magazine are also plaintiffs.

The lawsuit bears a similarity to the lawsuit against the provision of the National Defense Authorization Act (NDAA) that granted the military power to indefinitely detain persons. (In fact, Chris Hedges is a plaintiff in the NDAA lawsuit.)

At issue is the following:

Plaintiffs are attorneys and human rights, labor, legal, and media organizations whose work requires them to engage in sensitive and sometimes privileged telephone and email communications with colleagues, clients, journalistic sources, witnesses, experts, and victims of human rights abuses located outside the United States. Because of the scope of the challenged law, the nature of their communications, and the identities and geographic locations of their contacts, plaintiffs reasonably  believe that their confidential communications will be acquired, analyzed, retained, and disseminated under the FAA.

All plaintiffs exchange information that constitutes “foreign intelligence information” within the meaning of the FAA—that is, all plaintiffs
communicate precisely the kind of information that the statute authorizes the government to collect…

McKay communicates with accused terrorists. Royce communicates with relatives of Guantanamo Bay detainees. HRW communicates with victims of extraordinary rendition. WOLA communicates with dissidents in Latin America. Klein communicates with indigenous rights advocates in Argentina. Hedges communicates with sources throughout the Middle East.

What the FAA does, the ACLU argues, is disrupt the ability of these writers, journalists, lawyers, human rights advocates, etc, to engage in confidential communication while conducting their “professional activities.” It “compromises their ability to locate witnesses, cultivate sources, gather information, communicate confidential information to their clients, and engage in other legitimate and constitutionally protected communications.”

Each of these plaintiffs have a fear of injury caused by their rights to privacy being violated.

It is worth noting that Judge Katherine B. Forrest held in Hedges v. Obama, the ruling where she issued a permanent injunction against the NDAA provision, that Hedges had shown the provision could result in an “imminent and particularized invasion of legally-protected interests.” She found Hedges had presented facts that “a chilling” of his “written, oral or associational activities” had occurred as a result. “That is actual injury.”

Similarly, Hedges and other plaintiffs—in a court of law that respects historical tenets and principles of constitutional privacy—should only have to present that the FAA could result in an “imminent and particularized invasion of legally-protected interests.” He and others should only have to prove that a “chilling” of his “professional activities” has occurred. If such a chilling has happened, that is injury. It should be grounds to argue the law is unconstitutional and Congress should be required to amend the law so the NSA is no longer allowed to intercept the communications of innocent Americans.

As I have written, writers, journalists, activists and other citizens must anticipate that they might be warrantlessly wiretapped because it is now legal, and in order to stop government, they must force government to define what gives it the power to violate someone’s privacy. They must anticipate what might lead the government to add them to a “No-Fly” list, because the government will not make public the criteria. They must file challenges in court to the addition of people to “kill lists” when they have reason to believe they have been added or when they believe they themselves could be added. This is because the national security state has no opposition from either major political party in the United States, the Congress no longer functions as a check on the Executive Branch, and the press yawns or gives government the benefit of the doubt each time it decides to expand the scope of its power to control people and undermine liberty.

Preemptive lawsuits of this nature, by people who have not yet been violated but have reason to believe they could, have to step up and get in the way of alarming expansions of executive power. It is the only thing that stands any chance of stopping creeping totalitarianism.

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Kevin Gosztola

Kevin Gosztola

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