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The ACLU and the EFF, the public interest advocacy groups who have done the lion's share of the work against the Bush/Cheney warrantless wiretapping program--including bringing the civil cases against AT&T and other telcos (and who, btw, are not greedy trial lawyers), have both announced they will bring legal challenges against the new FISA law, passed yesterday by the Senate and gleefully signed today by Bush. The groups will challenge both the immunity provisions and the unprecedented expansion of warrantless wiretapping allowed in the new law.

From EFF's blog, Deeplinks:

Since then, the phone companies and their allies in Washington have spent tens of millions of dollars lobbying Congress to grant them retroactive immunity. They ran ridiculous fear-mongering attack ads against any politician who dared to oppose them. President Bush threatened to veto any bill that allowed EFF's lawsuit to continue.

Yesterday, Congress completely capitulated to the President's threats and voted to let the telecoms off the hook. If the telecoms are not held accountable, the administration will remain unchecked in its warrantless wiretapping of innocent Americans. This must stop!

We need your help to take the fight to the next level. We're going to challenge Congress's unconstitutional grant of immunity in our case against AT&T. We're going to fight for a congressional repeal of immunity in the next Congress. And we're going to file a new lawsuit against the government, challenging its warrantless surveillance practices, past, present and future.

Repeal of immunity is frankly pretty unlikely, unless the federal court which has been directed by this law to dismiss the cases against the telcos delays deciding on these cases until there's a new Congress. But, particularly in light of the recent Al Haramain opinion issued by Chief Judge Vaughn Walker of the Northern District of California, there is some possibility that the new law could be deemed unconstitutional.

The ACLU has filed suit in U.S. District Court for the Southern District of New York today, challenging the overreaching surveillance powers it confers on the executive. From the ACLU's blog:

Three of our main points:

  • The FAA violates the Fourth Amendment because it allows the government to gobble up the constitutionally protected communications of American citizens and residents without getting individualized warrants, and without specifying the time, place or length of the surveillance, and not specifying how the info gathered will be disseminated, or how long it’ll be kept. (You know, the who/what/where/when/why.)
  • The FAA also violates the First Amendment by chilling lawful expressive speech without adequate justification by authorizing the government to intercept constitutionally protected communications without judicial oversight.
  • The challenged law violates the principle of separation of powers by allowing the government to continue surveillance activities even if the Foreign Intelligence Surveillance Court has deemed those activities illegal. (Good idea, right? Asking the government to obey the law?)

The ACLU is joined in this suit by plaintiffs The Nation magazine, journalists Naomi Wolf Klein and Chris Hedges, attorneys David Nevin, Scott McKay, Dan Arshack and Sylvia Royce, as well as a number of organizations including Human Rights Watch, Amnesty International, the Global Fund for Women, among many. Wolf and Hedges, as well as representatives from some of the NGOs in the suit participated in a conference call for reporters and bloggers the ACLU held Thursday. All of the representatives spoke about the chilling effect this law will have on their efforts to conduct their regular business.

Many of them work with groups, particularly in the human rights arena, who have been labeled by their own governments as terrorist organizations. There is now a very real fear on the part of these groups that this communication will cease as foreign partners face the possibility that their communications will be gathered and turned over to their governments by the U.S. Statements by some of these plaintiffs can be found on here.

Additionally, the ACLU has petitioned the Foreign Intelligence Surveillance Court "to ensure that any proceedings relating to the scope, meaning or constitutionality of the FAA be open to the public to the extent possible and that the ACLU be allowed to make arguments about the constitutionality of the new law."

Originally posted to Daily Kos on Fri Jul 11, 2008 at 06:45 AM PDT.


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