Civil liberties advocates have lost no time in
asking a federal court to stop the government from conducting surveillance
under the new wiretapping law passed by Congress and signed by President George
W. Bush last week.
The American Civil Liberties Union (ACLU) and a coalition of other groups
declared that the new law "gives the Bush administration virtually unchecked
power to intercept Americans' international e-mails and telephone calls."
The ACLU coalition's legal challenge, which was filed in the U.S. District
Court for the Southern District of New York, seeks a court order declaring
that the new law is unconstitutional and ordering its immediate and permanent
ACLU Executive Director Anthony D. Romero charged that the new law "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."
He added, "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
The wiretapping issue became the center of a storm of criticism after the
New York Times revealed that, following the Sept. 11, 2001 terrorist
attacks, President Bush had secretly authorized the National Security Agency
(NSA) to eavesdrop on U.S. citizens and others inside the country to search
for evidence of terrorist activity without the court-approved warrants ordinarily
required for domestic spying, according to government officials.
Under a presidential order signed in 2002, the intelligence agency monitored
the international telephone calls and international e-mail messages of hundreds,
perhaps thousands, of people inside the U.S. without warrants in an effort
to track possible "dirty numbers" linked to al-Qaeda, the officials
Criticism at the time came from a wide variety of civil libertarians, including
Bob Barr, a former conservative Republican congressman from Georgia and currently
the Libertarian Party candidate for president. He told IPS that in 2000, Gen.
Michael Hayden, then head of the NSA and currently director of the Central
Intelligence Agency, told a congressional hearing on wiretap targets, "If
that American person is in the United States of America, I must have a court
order before I initiate any collection against him or her."
Barr's advice was, "If the president doesn't like the law, the solution
should be to amend, not violate it."
The Bush administration then called on Congress to pass amendments to the
original Foreign Intelligence Surveillance Act (FISA), which was enacted in
1978. The 2008 version emerged as the result of a "compromise" between
Democrats and Republicans in the House and Senate. Among its other provisions,
the new law granted retroactive immunity to the telephone companies that had
assisted the government in the warrantless wiretaps.
The surveillance legal challenge was filed on behalf of a 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 ACLU said.
The FISA Amendments Act of 2008 declares that "Electronic surveillance
must be conducted in a constitutional manner that affords the greatest possible
protection for individual privacy and free speech rights." But the ACLU
and its coalition claims the new wiretapping law "fails to provide fundamental
safeguards that the Constitution unambiguously requires."
Plaintiffs in the suit include The Nation magazine and two of 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; the Washington Office on Latin America; the
International Criminal Defense Attorneys Association; and several individual
defense attorneys and journalists.
In its legal challenge, the coalition 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 e-mail 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."
Nation magazine writer Naomi Klein said that "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."
She added, "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." Human Rights Watch program director Iain
Levine said the new legislation "will allow mass government interception
of electronic communications, so long as the target is overseas, without meaningful
judicial oversight or warrant identifying who or what is to be subject to surveillance."
"In the course of our work reporting on and defending human rights, we
regularly need to be in contact with activists and human rights victims all
over the world," he said. "Knowing that the U.S. government could
be monitoring our calls and e-mails often inhibits our efforts, and causes
us to take expensive and delaying measures to keep our communications secure."
Internet privacy under the new law continues to be a concern to civil libertarians.
For example, the San Francisco-based Electronic Frontier Foundation (EFF) has
filed a number of Freedom of Information Act requests with the Federal Bureau
of Investigation and other U.S. Justice Department offices, seeking the release
of documents it says will reveal whether the government has been using the
USA PATRIOT Act to spy on Internet users to collect secret information about
their Internet habits without a search warrant.
Kevin Bankston, an EFF attorney, told IPS, "Although Internet users reasonably
expect that their online reading habits are private, the Department of Justice
will not confirm whether it collects or believes itself authorized to collect
URLs using pen-trap devices."
Pen-traps collect information about the numbers dialed on a telephone but
do not record the actual content of phone conversations. Because of this limitation,
court orders authorizing pen-trap surveillance are easy to get; instead of
having to show probable cause, the government need only certify relevance to
its investigation. The government is not required to inform people that they
are or were the subjects of pen-trap surveillance.
(Inter Press Service)