The underlying issue in the opposition to legislation such as The Patriot Act and FISA is: how do we protect people from terrorists while we maintain a right to privacy?

See also:
Telecom Whistleblower Exposes Big Brother Techniques are at Work
Al-Haramain Islamic Foundation v. President Bush, and Warrantless Surveillance
Sibel Edmonds, a Former Turkish Translator For the FBI, Speaks Out About U.S. Government Corruption
FBI Whistleblower Sibel Edmonds Continues to Expose Corruption in the Bush Administration

...and then think about whether or not our government has gone too far in implementing laws that should or should not be passed at all...

ACLU Urges Senators to Oppose Unconstitutional Surveillance Bill (7/8/2008)

ACLU Sues Over Unconstitutional Dragnet Wiretapping Law (7/10/2008)
Group Also Asks Secret Intelligence Court Not To Exclude Public From Any Proceedings On New Law's Constitutionality

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org
LINK

NEW YORK - The American Civil Liberties Union filed a landmark lawsuit today to stop the government from conducting surveillance under a new wiretapping law that gives the Bush administration virtually unchecked power to intercept Americans' international e-mails and telephone calls. The case was filed on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations whose ability to perform their work - which relies on confidential communications - will be greatly compromised by the new law.

The FISA Amendments Act of 2008, passed by Congress on Wednesday and signed by President Bush today, not only legalizes the secret warrantless surveillance program the president approved in late 2001, it gives the government new spying powers, including the power to conduct dragnet surveillance of Americans' international communications.

"Spying on Americans without warrants or judicial approval is an abuse of government power - and that's exactly what this law allows. The ACLU will not sit by and let this evisceration of the Fourth Amendment go unchallenged," said ACLU Executive Director Anthony D. Romero. "Electronic surveillance must be conducted in a constitutional manner that affords the greatest possible protection for individual privacy and free speech rights. The new wiretapping law fails to provide fundamental safeguards that the Constitution unambiguously requires."

In today's legal challenge, the ACLU argues that the new spying law violates Americans' rights to free speech and privacy under the First and Fourth Amendments to the Constitution. The new law permits the government to conduct intrusive surveillance without ever telling a court who it intends to spy on, what phone lines and email addresses it intends to monitor, where its surveillance targets are located, why it's conducting the surveillance or whether it suspects any party to the communication of wrongdoing.

Plaintiffs in today's case are:

* The Nation and its contributing journalists Naomi Klein and Chris Hedges
* Amnesty International USA, Global Rights, Global Fund for Women, Human Rights Watch, PEN American Center, Service Employees International Union, Washington Office on Latin America, and the International Criminal Defence Attorneys Association
* Defense attorneys Dan Arshack, David Nevin, Scott McKay and Sylvia Royce

"As a journalist, my job requires communication with people in all parts of the world - from Iraq to Argentina. If the U.S. government is given unchecked surveillance power to monitor reporters' confidential sources, my ability to do this work will be seriously compromised," said Naomi Klein, an award-winning columnist and best-selling author who is a plaintiff in today's lawsuit. "I cannot in good conscience accept that my conversations with people who live outside the U.S. will put them in harm's way as a result of overzealous government spying. Privacy in my communications is not simply an expectation, it's a right."

The ACLU's legal challenge, which was filed in the U.S. District Court for the Southern District of New York today, seeks a court order declaring that the new law is unconstitutional and ordering its immediate and permanent halt.

In a separate filing, the ACLU asked the Foreign Intelligence Surveillance Court (FISC) to ensure that any proceedings relating to the scope, meaning or constitutionality of the new law be open to the public to the extent possible. The ACLU also asked the secret court to allow it to file a brief and participate in oral arguments, to order the government to file a public version of its briefs addressing the law's constitutionality, and to publish any judicial decision that is ultimately issued.

"The new law allows the mass acquisition of Americans' international e-mails and telephone calls," said Jameel Jaffer, Director of the ACLU National Security Project. "The administration has argued that the law is necessary to address the threat of terrorism, but the truth is that the law sweeps much more broadly and implicates all kinds of communications that have nothing to do with terrorism or criminal activity of any kind."

In 2006, the ACLU filed a lawsuit against the National Security Agency (NSA) to stop its illegal, warrantless spying program. A federal district court sided with the ACLU, ruling that warrantless wiretapping by the NSA violated Americans' rights to free speech and privacy under the First and Fourth Amendments of the Constitution, ran counter to the Foreign Intelligence Surveillance Act and violated the principle of separation of powers. The Bush administration appealed the ruling, and an appeals court panel dismissed the case. However, the court did not uphold the legality of the government's warrantless surveillance activity and the only judge to discuss the merits of the case clearly and unequivocally declared that the warrantless spying was unlawful. The Supreme Court declined to hear the case earlier this year.

"A democratic system depends on the rule of law, and not even the president or Congress can authorize a law that violates core constitutional principles," said Christopher Dunn, Associate Legal Director of the New York Civil Liberties Union. "The only thing compromised in this so-called 'compromise' law is the Constitution."

Attorneys on the lawsuit Amnesty v. McConnell are Jaffer, Melissa Goodman and L. Danielle Tully of the ACLU National Security Project and Dunn and Arthur Eisenberg of the NYCLU. Attorneys on the motion filed with the FISC are Jaffer, Goodman, Tully, as well as Arthur Spitzer of the ACLU of the National Capital Area.

More information, including today's complaint, a video discussing the ACLU's legal challenge, plaintiff statements in support of the lawsuit and the FISC motion, is available at: www­.aclu.org/faa

US civil rights activists protest new wiretapping law
LINK

The American Civil Liberties Union (ACLU) has filed suit against the US government to protest the new Federal Intelligence Surveillance Act (FISA) recently passed by Congress. The civil rights organisation believes that the far-reaching authority granted by the Act, which has now been signed by George W. Bush, is unconstitutional. In their official complaint, they argue that the change in FISA allows the government and security authorities to "monitor the communications of US citizens and residents, without identifying the people to be surveyed; without specifying the facilities, places, premises, or property to be monitored; (and) without observing meaningful limitations on the retention, analysis, and dissemination of acquired information".

In addition, they argue that the amended law does not require any judge to issue a specific, individual warrant based on probable cause, nor do authorities need to establish a connection between the targets of surveillance and foreign agents or terrorism. As a result, the ACLU believes that the Act makes mass wiretapping of telephone calls and emails legal, thereby constituting abuse of governmental authority and a violation of the right to free speech and privacy as granted in the Constitution.

The ACLU filed suit in the District of New York on behalf of numerous human rights organisations, such as Amnesty International USA, the PEN writers' organisation, and news magazine The Nation, which publishes regular columns by Naomi Klein and Chris Hedges. Klein, a Canadian critic of globalisation said, "If the U.S. government is given unchecked surveillance power to monitor reporters' confidential sources, my ability to do this work will be seriously compromised." She said it was not acceptable if communication with informants outside the US puts them at risk because state spying has gone haywire.

At the beginning of 2006, the ACLU originally filed suit against the Bush administration's wiretapping program, which the amended FISA now largely legitimates; the wiretapping is conducted by the National Security Agency (NSA). The ACLA lost the appeal in that case. In contrast, in its court case the US Electronic Frontier Foundation(EFF) is focusing on collaboration between the US Secret Service and such telcos as AT&T. The Internet activists are, however, also protesting a new clause in FISA that provides immunity to the government's agents. An EFF lawyer has also announced that the organisation will file suit, in principle, against wiretapping without a warrant from a judge. He said the goal was to bring the network of spying to light and put an end to it.

(Stefan Krempl)
mailto:trk@heise-online.co.uk

ACLU Challenges Unconstitutional Spying Law
LINK

In July 2008, Congress capitulated to the White House's demands and scare tactics by passing the FISA Amendments Act of 2008, giving the NSA even more power to spy on Americans without warrants than it exercised under its illegal surveillance program. The ACLU is asking the court to protect the privacy rights of all Americans and declare the FAA unconstitutional.

THE GUTTING OF FISA
For years, the Bush administration illegally intercepted the emails and phone calls of millions of Americans. Rather than rein in this abuse of power, lawmakers on Capitol Hill caved in to the administration and gave the National Security Agency (NSA) even more expansive powers to spy on Americans than it had under the illegal warrantless wiretapping program President Bush secretly authorized in 2001.

The Constitution is the bedrock of our democracy; it ensures Americans the right to privacy and free speech. Electronic surveillance is highly invasive. By reading our emails and listening to our phone calls the government gets direct access to our thoughts, our feelings, our associates and our political views. Unrestrained and unchecked government surveillance not only intrudes upon Americans' right to privacy, it also has the dangerous effect of chilling speech and political dissent. The power to spy is one that is easily abused and history is full of examples of what leaders are willing to do when tempted with unchecked power.

Electronic surveillance is a necessary tool in protecting our nation's security, but it must be conducted constitutionally. That is why the ACLU is in court fighting on behalf of non-profits, attorneys and prominent journalists to strike down the FISA Amendments Act of 2008.

The ACLU has also asked the Foreign Intelligence Surveillance Court (FISC) to ensure that any proceedings relating to the scope, meaning or constitutionality of the FAA be open to the public to the extent possible and that the ACLU be allowed to make arguments about the constitutionality of the new law. The FISC oversees intelligence surveillance, typically operates in secret, and hears arguments only from the government.

Senate Passes Unconstitutional Spying Bill And Grants Sweeping Immunity To Phone Companies (7/9/2008)

ACLU Announces Legal Challenge To Follow President’s Signature

FOR IMMEDIATE RELEASE
CONTACT: (202) 675-2312, media@dcaclu.org or
(212) 549-2666; media@aclu.org

WASHINGTON – Today, in a blatant assault upon civil liberties and the right to privacy, the Senate passed an unconstitutional domestic spying bill that violates the Fourth Amendment and eliminates any meaningful role for judicial oversight of government surveillance. The FISA Amendments Act of 2008 was approved by a vote of 69 to 28 and is expected to be signed into law by President Bush shortly. This bill essentially legalizes the president’s unlawful warrantless wiretapping program revealed in December 2005 by the New York Times.

“Once again, Congress blinked and succumbed to the president’s fear-mongering. With today’s vote, the government has been given a green light to expand its power to spy on Americans and run roughshod over the Constitution,” said Anthony D. Romero, Executive Director of the American Civil Liberties Union. “This legislation will give the government unfettered and unchecked access to innocent Americans’ international communications without a warrant. This is not only unconstitutional, but absolutely un-American.”

The FISA Amendments Act nearly eviscerates oversight of government surveillance by allowing the Foreign Intelligence Surveillance Court (FISC) to review only general procedures for spying rather than individual warrants. The FISC will not be told any specifics about who will actually be wiretapped, thereby undercutting any meaningful role for the court and violating the Fourth Amendment’s protection against unreasonable search and seizure.

The bill further trivializes court review by authorizing the government to continue a surveillance program even after the government’s general spying procedures are found insufficient or unconstitutional by the FISC. The government has the authority to wiretap through the entire appeals process, and then keep and use whatever information was gathered in the meantime. A provision touted as a major “concession” by proponents of the bill calls for investigations by the inspectors general of four agencies overseeing spying activities. But members of Congress who do not sit on the Judiciary or Intelligence committees will not be guaranteed access to the agencies’ reports.

The bill essentially grants absolute retroactive immunity to telecommunication companies that facilitated the president’s warrantless wiretapping program over the last seven years by ensuring the dismissal of court cases pending against those companies. The test for the companies’ right to immunity is not whether the government certifications they acted on were actually legal – only whether they were issued. Because it is public knowledge that certifications were issued, all of the pending cases will be summarily dismissed. This means Americans may never learn the truth about what the companies and the government did with our private communications.

“With one vote, Congress has strengthened the executive branch, weakened the judiciary and rendered itself irrelevant,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “This bill – soon to be law – is a constitutional nightmare. Americans should know that if this legislation is enacted and upheld, what they say on international phone calls or emails is no longer private. The government can listen in without having a specific reason to do so. Our rights as Americans have been curtailed and our privacy can no longer be assumed.”

In advance of the president’s signature, the ACLU announced its plan to challenge the new law in court.

“This fight is not over. We intend to challenge this bill as soon as President Bush signs it into law,” said Jameel Jaffer, Director of the ACLU National Security Project. “The bill allows the warrantless and dragnet surveillance of Americans’ international telephone and email communications. It plainly violates the Fourth Amendment.”

For more information, go to:
www.aclu.org/fisa

REVIEW & OUTLOOK
The Intelligence Deal
Wall Street Journal, June 20, 2008; Page A12

(See Corrections and Amplifications item below.)

The best news about yesterday's White House-Democrat deal on overseas eavesdropping is that the ACLU and the anti-antiterror Internet mob are apoplectic. This can only be good for U.S. national security. Too bad the compromise also comes at the cost of a further erosion of Presidential war powers.

The deal would extend the 1978 Foreign Intelligence Surveillance Act to cover eavesdropping on terrorist communications overseas. A six-month extension – the Protect America Act – expired earlier this year and surveillance authorization on al Qaeda targets will start to expire in August. The new deal – assuming it isn't defeated by liberals on the House floor – would last for six years. It is thus a gift to the next President, who won't have to spend capital battling those who think that letting our spooks read al Qaeda's email inevitably means that Dick Cheney is bugging your bedroom.

On the bright side, the deal gives crucial immunity to the telecom companies that in good faith assisted this surveillance after 9/11. A reality of this Internet era is that the feds need these private companies to monitor terrorists; our spies can't merely bug the phones of Russian spies like they could during the Cold War. The left understands this and has hit the companies with some 40 lawsuits in an attempt to shut down the surveillance by the backdoor, without a political debate that voters might understand.

The telecom (and other) companies have thus made it clear that they can't afford to cooperate any longer without immunity. And so the deal will let the companies escape the lawsuits, for past and future cooperation, if they present to a federal judge a certification from the Attorney General that they are helping at federal request. The eavesdropping orders that expire in August can thus be renewed, so our security services won't have to "go dark" over the global antiterror battlefield.

The steep price of this authority is that from now on all of these overseas eavesdropping orders will require advance approval by a special FISA court of rotating judges. This will apply even to emails or calls that emanate in, say, Peshawar and never leave Pakistan – except that by the accident of our Internet age they may happen to move through American switching networks.

The deal does carve out an exception to this judicial preapproval for "exigent circumstances" involving urgent threats, but the FISA judges would still have to approve after the fact. No other nation in the world, to our knowledge, requires such deference to judges when tracking foreign enemies abroad.

This judicial review is supposedly to check abuses by the executive. But it also imposes a judge in the middle of the wartime chain of command. A judge, moreover, who may have no special intelligence expertise and no understanding of the enemy threat. For this reason, these judges will in practice tend to rubber stamp executive requests.

But the precedent of judicial intrusion is still dismaying because it will be used as a baseline to limit future Presidential discretion. As for potential abuses, at least an Attorney General and President are accountable to voters if they use this authority to spy on their political opponents. On the other hand, if a willful judge denies a surveillance request and Americans are killed as a result, he is accountable to no one. Recall the "wall" of separation between intelligence and law enforcement that developed in the 1990s under domestic FISA and which the 9/11 Commission so criticized. No one paid any political price for that.

The bill also empowers the Justice Department's Inspector General to investigate the post-9/11 origins of this overseas surveillance. Congress could always do this on its own, but that would mean taking political responsibility. Far better to empower a bureaucrat – and IGs are creatures of Congress in the executive branch – to issue some supposedly "independent" criticism.

We can appreciate why President Bush believes he must make these concessions. In the fight against a furtive enemy, intelligence and interrogation are the best weapons we have. While we wish Mr. Bush were willing to force an election-year showdown with Democrats, he's accountable for any intelligence damage in the interim. Meanwhile, if Democrats control the entire government next year, any new FISA limits would be far worse.

Still, these compromises may hurt future Presidents. To adapt the left's favorite conspiracy theory, we doubt this would be happening if Dick Cheney were still President.

Corrections & Amplifications:

The FISA Amendments Act of 2008 that passed the House on June 20 will expire at the end of 2012. This editorial mistakenly said it would last six years.

Office of the Law Revision Counsel

See also:
Coalition Letter to the Senate Strongly Urging a "No" Vote on the FISA Amendments Act, H.R. 6304 (7/7/2008)

ACLU Letter to Senate Members Urging Opposition to H.R. 6304, the FISA Amendments Act (6/25/2008)
Description: The American Civil Liberties Union strongly urges you to vote “NO” on H.R. 6304, the FISA Amendment Acts of 2008. This bill unconstitutionally and unnecessarily permits the government to vacuum up Americans’ international communications, without a connection to al Qaeda, terrorism, or even to national security. While there is limited prior review by the Foreign Intelligence Surveillance Court, the protection afforded by that review is almost completely illusory. H.R. 6304 also grants retroactive immunity to companies that facilitated warrantless wiretapping over the last seven years. For these reasons, we ask you to stand with the Constitution and vote no on this overreaching legislation. Because this bill essentially eviscerates the Foreign Intelligence Surveillance Act and many of the Fourth Amendment protections it contained, we will be scoring this vote.

ACLU Letter to the House Of Representatives Strongly Urging Opposition to H.R. 6304 , The FISA Amendments Act of 2008 (06/19/2008)

ACLU Analysis of Telecom Immunity Provision in Senator Bond's Proposal of May 21, 2008 (06/12/2008)

Testimony of Caroline Fredrickson on Overclassification Before the House Subcommittee on Intelligence, Information Sharing and Terrorism Risk Assessment

ACLU Letter to Senate Judiciary Leadership Urging the Questioning into the National Security Council's Role in Torture (06/09/2008)

Joint Letter from Members of Congress to Attorney General Mukasey Urging the Appointment of Special Counsel

Sign On Letter to House Homeland Security, Intelligence and Judiciary Committees Opposing Funding for Domestic Spy Satellites (6/4/2008)

ACLU Letter to Rep. Delahunt, Chairman of House Foreign Affairs Subcommittee on International Organizations, Human Rights and Oversight (6/3/2008)

ACLU One Pager on the State Secrets Protection Act of 2007, H.R. 5607 (06/03/2008)