Hmm. Somehow I missed this one. The American Civil Liberties Union lawsuit against the US government under George W. Bush regarding surveillance of phone calls made and emails sent overseas by US citizens was reinstated last month by an appeals court.
The suit began because of the revelation that the National Security Agency had been ordered by Bush to engage in warrantless eavesdropping on the telephone calls of Americans overseas. Bush claimed an ‘inherent right’ of the executive to spy on US citizens in this way.
The ACLU launched the class action suit on behalf of activists who might plausibly expect to have been spied on as part of the Bush program. It was initially turned back by a US district court over questions of standing, insofar as the parties to the suit, including journalist Christopher Hitchens, only had a reasonable suspicion that they might have been subject to eavesdropping, not actual proof.
Judge Gerard Lynch, writing for a 3-judge Federal appeals panel, accepted the argument that the groups and individuals potentially targeted had had to incur extra expenses and trouble to avoid being the object of such illegal wiretaps, since Bush’s policy made them plausible targets. Lynch wrote:
“The government overstates the standard for determining when a present injury linked to a contingent future injury can support standing… The plaintiffs have demonstrated that they suffered present injuries in fact – concrete economic and professional harms – that are fairly traceable to the FAA and redressable by a favorable judgment.”
The Fourth Amendment to the Constitution states,
‘ The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ‘
Although the Fourth Amendment does not explicitly mention communications, from early in the history of the Republic, courts and government practice recognized the right to privacy in land mail handled by the US post office, and this principle was explicitly extended to telephone calls in later rulings.
Although Congress in 2008 tried to address the issue of warrantless wiretapping and surveillance of email by putting the issue in the hands of courts functioning under the Federal Intelligence Surveillance Act, Bush continued to insist that he had the inherent right to listen in on your phone calls and read your email without a warrant. The secrecy of the FISA courts and the lack of oversight over them has alarmed civil libertarians.
Bush administration officials repeatedly argued that there had been no known abuses in the surveillance – that is, it was only targeting individuals who were in contact with persons of interest abroad. But the secrecy of the program means that we don’t have any way of knowing about abuses, and they may have been legion.
I am relieved that Judge Lynch and his colleagues reinstated the suit, and a little surprised, as well. The courts, prosecutors and even the present attorney general have let the Bush administration get away with so many crimes that I had begun to suspect that that our system had just become too corrupt and/or politicized to protect basic American freedoms.
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