The 2nd U.S. Circuit Court of Appeals has twice now rejected the Obama Administration’s attempts to throw out a lawsuit challenging the Foreign Intelligence Surveillance Amendments Act (FISA) allowing “warrantless wiretaps.”
Yesterday, a lawsuit that had been filed by plaintiffs against the Foreign Intelligence Surveillance Amendments Act (FISA)—which allows “warrantless wiretaps”—caught a break from the 2nd U.S. Circuit Court of Appeals. In a 6-6 vote, the court allowed the lawsuit to proceed.
The plaintiffs—Global Fund for Women, The Nation magazine, Global Rights, International Criminal Defense Attorneys Association, PEN American Center, Human Rights Watch, Service Employees International Union and others—were backed by the American Civil Liberties Union (ACLU) in the case. Filed just after the FISA Act was signed into law, the plaintiffs argued that it would creating a chilling effect on free speech and violates the 4th Amendment, which protects against unwarranted search and seizures.
The government had sought to have the case tossed on the grounds that the plaintiffs couldn’t prove that they had been subject to NSA warrantless wiretaps, while also suggesting that if the plaintiffs were wiretapped, they couldn’t prove that they had suffered hardship because of it. Nifty juking on the part of the government.
However, the worry now is that the Obama Administration will invoke state secrets privilege, to which courts tend to defer. Another possibility is that the Supreme Court could intervene before this case is argued in a federal court.
And while the government clearly has the upper hand in such cases, a federal judge in San Francisco allowed for a wiretapping lawsuit to go forward against AT&T, but the federal government retroactively provided the telecom giant with immunity. The Electronic Frontier Foundation (EFF) has appealed these backdoor immunity deals in the 9th Circuit in Hepting v. AT&T and Jewel v. NSA, as well as 32 other cases brought against various other telecommunications carriers.