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FISA Challenge Lives: ACLU Can Pursue Wiretapping Case

By Robyn Hagan Cain on September 23, 2011 | Last updated on March 21, 2019

The Second Circuit Court of Appeals ruled this week that the American Civil Liberties Union (ACLU) can proceed in its lawsuit questioning the constitutionality of the Foreign Surveillance Intelligence Act (FISA) wiretapping provisions.

Congress passed the FISA Amendments Act in 2008, effectively authorizing warrantless surveillance of Americans’ international email and telephone calls. The ACLU filed its FISA challenge lawsuit less than 24 hours after the bill was passed.

In March, the Second Circuit Court of Appeals reversed a district court dismissal of the suit on standing ground, finding that the ACLU could bring the suit without a showing that the government had used FISA to spy on the plaintiffs. In a 2-1 opinion, Judge Gerard Lynch wrote, "To reject the plaintiffs' arguments not because they lack merit, but because we refuse to hear them, runs a much graver risk than whatever invasion of plaintiffs' privacy might be occasioned by the surveillance authorized by the challenged statute."

The Obama Administration's request for an en banc review of the March decision was denied because the Second Circuit judges were evenly divided on rehearing, and a majority is required to grant the motion.

A plaintiff victory in the FISA challenge, however, is not guaranteed. The Supreme Court could still intervene, or the administration could assert its feared lawsuit slayer, the state secrets privilege, and claim that litigation would expose national security secrets.

Regardless of the outcome in the district court, the parties will probably find their way back to the Second Circuit Court of Appeals, where the plaintiffs may not receive a warm reception. In a dissent to the court's denial of rehearing, Chief Judge Dennis Jacobs blasted the plaintiffs, stating, "The only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation."

What do you think? Are the plaintiffs attention seekers, or does the FISA challenge raise legitimate concerns?

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