ACLU Lens: Court Rules Challenge to Warrantless Wiretapping Law Can Proceed

In a very significant development, yesterday a federal appeals court ruled that our lawsuit challenging warrantless wiretapping can proceed. The law that we’re challenging, the FISA Amendments Act (FAA) of 2008, is the most far-reaching surveillance law ever enacted by Congress. It gives the National Security Agency (NSA) virtually limitless power to spy on Americans' international phone calls and emails. It allows the NSA to collect those communications en masse, without a warrant, without suspicion of any kind, and with only very limited judicial oversight. Needless to say, the law has dramatic implications for Americans' privacy rights.

In the lower court, the case was dismissed on “standing” grounds. The judge ruled that our plaintiffs — a broad coalition of attorneys and human rights, labor, legal and media organizations — could not prove with certainty that they had been spied on and consequently didn’t have the right to challenge the law. A three-judge panel of the appeals court reversed that decision, and yesterday the full appeals court refused to reconsider that ruling.

The government now has 90 days to decide whether or not to appeal this issue to the Supreme Court. We hope that that they will decline to file a petition and instead allow the case to go back to the lower court so that a judge can finally consider the constitutionality of the FAA.

In the news:

• New York Times: Split Decision and Barbed Comments Show a Court Deeply Divided on Wiretapping
• Salon.com: Glenn Greenwald: Dennis G. Jacobs: case study in judicial pathology

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