Court Greenlights Challenge to Federal Wiretapping Statute

Until this week, it was unclear whether U.S. citizens were able to contest the government’s warrantless wiretapping practices in the nation’s courts. On March 21, 2011, a unanimous panel of the Second Circuit cleared the way for a constitutional challenge to the 2008 amendments to the Foreign Intelligence Surveillance Act (FISA).

A number of human rights activists, lawyers, and journalists, represented by the ACLU, filed a complaint in July 2008 claiming that the government’s warrantless wiretapping and surveillance powers under FISA Section 702 violated the Fourth Amendement, Article III, and separation of powers doctrine. The amendments at issue authorize electronic surveillance for non-U.S. citizens located outside the United States, and provide immunity for cooperating telecommunications companies. Consistent with the plaintiffs allegations, there is good reason to believe that U.S. citizens have been targeted as well — in violation of their rights.

A New York district court judge, Judge Koetle (SDNY), however, never let the constitutional challenge go forward. Judge Koetle held instead that the plaintiffs lacked standing to challenge the Act, because the ACLU had not demonstrated that they were specifically targeted by the government. According to the now-overturned lower court decision, absent further evidence that the plaintiffs’ communications were monitored, they had not demonstrated the actual harm necessary for their case to proceed.

In reversing the district court earlier this week, the Second Circuit panel wrote that parties have standing to challenge a statute if there is “a reasonable fear of future injury and costs incurred to avoid that injury.“ The court concluded that the plaintiffs here had in fact satisfied that standard and demonstrated both reasonable fears that their sensitive electronic communications were being monitored and that they had taken costly measures to avoid such monitoring.

Although this decision only addressed the standing issue, it’s an important reassertion of a constitutional doctrine. As Glenn Greenwald noted in his column at Salon, the Bush and Obama DOJ have relied on standing doctrine to expand the sphere of executive immunity. “If one were to accept their tactic, a President need only break the law in total secrecy and prevent anyone from finding out what exactly he did and to whom he did it.”

I had the opportunity to see Daniel Ellsberg and Scott Horton speak at an event last night at the Harvard Law School. Ellsberg voiced concern that the United States government was growing increasingly secretive about its internal functioning, and at the same time increasingly monitoring non-government activity — the precise infrastructure for an opaque surveillance state. The Second Circuit’s decision on Monday takes a small step toward restoring legality, but I’m not optimistic that it will do much to dismantle the post-9-11 surveillance state that Bush and Obama have built.