Justice Department Asks Appeals Court To Reconsider Ruling Allowing Challenge To Warrantless Wiretapping Law

In Related Suit, FBI Withholds Information In Order To Shield Surveillance Programs From Judicial Review

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NEW YORK – The Justice Department late Thursday petitioned a federal appeals court to rehear a lawsuit filed by the American Civil Liberties Union challenging the FISA Amendments Act (FAA), which gives the executive branch virtually unchecked power to collect Americans' international emails and telephone calls. In March, a three-judge panel of the U.S. Court of Appeals for the Second Circuit unanimously ruled the plaintiffs have the right to challenge the constitutionality of the law. Now the government wants all 11 judges of the appeals court to reconsider that ruling.

The ACLU filed the lawsuit in July 2008 on behalf of a broad coalition of 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, foreign government officials and victims of human rights abuses located outside the U.S. The Justice Department is arguing that the plaintiffs should not be able to sue without first showing that they have, in fact, been monitored under the program – information that the government refuses to provide.

"The Obama administration's effort to shield government surveillance programs from judicial review is disappointing and dangerous," said Jameel Jaffer, Deputy Legal Director of the ACLU, who argued the case before the appeals court. "If the administration's argument were to prevail, Americans' privacy rights would be left entirely to the mercy of the political branches. The appeals court should reject the administration's petition for rehearing and instead allow the trial court to evaluate the constitutionality of the surveillance statute our clients have challenged."

The government's latest request comes just after the FBI provided a surprising explanation for withholding information about its surveillance activities under the Freedom of Information Act (FOIA). Despite a lawsuit by the ACLU, the government has refused to identify which telecommunications companies are facilitating the warrantless wiretapping program because, the FBI's court filing said, "The stigma of working with the FBI would cause customers to cancel the companies' services and file civil actions to prevent further disclosure of subscriber information." The filing added that such consequences would also prompt the companies themselves to resist taking part by filing lawsuits of their own.

"The government doesn't want Americans to know whether their internet or phone companies are cooperating with the government's dragnet surveillance program because people and businesses might file lawsuits asserting their constitutional rights," said Alexander Abdo, staff attorney with the ACLU National Security Project. "The government should not be withholding information simply to insulate its surveillance activities from judicial review. The courts have an important role to play in ensuring that government surveillance is consistent with the Constitution."

More information about the ACLU lawsuit challenging the FAA is available at:
www.aclu.org/national-security/amnesty-et-al-v-clapper

More information about the FOIA lawsuit for records about the FAA, including the FBI's response, is available at:
www.aclu.org/faa