ACLU, NYCLU Sue for Records about Government's Use of Unconstitutional Spying Powers

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June 3, 2010 —  The American Civil Liberties Union and the New York Civil Liberties Union sued the government today for the release of documents about the implementation of the FISA Amendments Act of 2008 (FAA), an unconstitutional spying law that gives the executive branch virtually unchecked power to collect Americans' international e-mails and telephone calls in dragnet fashion, without a warrant and without suspicion of wrongdoing.

"Despite being in operation for nearly two years, the American public is largely in the dark about how the controversial FISA Amendments Act has been implemented in practice," said Melissa Goodman, staff attorney with the ACLU National Security Project. "The public has a right to know how the government is using, and possibly abusing, an intrusive surveillance power that implicates the privacy and speech rights of all U.S. citizens and residents."

The lawsuit seeks to enforce a November 2009 Freedom of Information Act (FOIA) request for records related to the government's interpretation and implementation of the FAA, including reports and assessments mandated by the law concerning how the FAA is being used, how many Americans are affected by this sweeping spying regime and what safeguards are in place to prevent abuse of Americans' privacy rights. The government has not yet released any of the records requested, and today's lawsuit asks a federal judge to order it to do so. The lawsuit alleges that the requested records are needed to enable informed public debate about whether the FAA – which expires in 2012 – should be repealed, amended or extended.

The ACLU filed today's FOIA lawsuit against the Office of the Director of National Intelligence, Justice Department, National Security Agency and Defense Department in the U.S. District Court for the Southern District of New York.

In July 2008, the ACLU and the NYCLU filed a landmark lawsuit to stop the government from conducting surveillance under the FAA 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 e-mail communications with colleagues, clients, journalistic sources, witnesses, experts, foreign government officials and victims of human rights abuses located outside the United States. A district court dismissed the case, ruling that the plaintiffs could not challenge the secret surveillance law because they could not prove that their own communications had been monitored under it. The ACLU and NYCLU appealed that ruling and have asked a federal appeals court to reinstate the case. The groups argued that, because of the secret nature of the FAA, the law may never be subject to judicial review at all if Americans are prohibited from challenging it unless they can show that their own communications have been collected.

"It is unfortunate that once again we have to sue over the secrecy that continues to shroud so much of our government's work," said NYCLU Associate Legal Director Christopher Dunn. "While we have seen recent improvements in transparency, much more remains to be done before we have a truly open government."

Attorneys on the FOIA case are Goodman and Jameel Jaffer of the ACLU and Dunn and Arthur Eisenberg of the NYCLU.

Today's FOIA complaint is available online at: www.aclu.org/national-security/foia-complaint-documents-related-faa-impl....

More information about the ACLU's challenge to the FAA is available at: www.aclu.org/faa.