The National Security Agency (NSA) has been intercepting Americans’ emails and phone  calls in recent months to an extent that exceeded even the overbroad limits permitted  under the controversial spying legislation passed last summer. According to the New  York Times, the NSA’s “overcollection” of American’ communications has been  “significant and systemic.”

The FISA Amendments Act of 2008 (FAA) was passed last July despite opposition from  the American Civil Liberties Union and other privacy advocates. It effectively  legalized the secret warrantless surveillance program President Bush approved in late  2001, but it also gave the government new spying powers, including the power to  conduct dragnet surveillance of Americans' international communications. The ACLU  filed a federal lawsuit immediately after Congress passed the law challenging its  constitutionality. The lawsuit is still pending.

“Congress was repeatedly warned that this type of abuse would be the obvious outcome  of passing the FISA Amendments Act,” said Caroline Fredrickson, Director of the ACLU  Washington Legislative Office. “Congressional leadership promised after this law’s  passage that it would be reexamined along with the Patriot Act. It’s time to fulfill  that promise and restore the checks and balances of our surveillance system.  Warrantless surveillance has no place in an America we can be proud of. These  revelations make it clear that Congress must now make a commitment to rein in  government surveillance.”

The ACLU is urging Congress to form a select committee to investigate whether laws  were broken in the Bush administration’s efforts to fight terrorism. A select  committee with subpoena power would be able to review past and present national  security laws and activities, restore the rule of law and help adopt fair standards  for the future. Ideally, reform legislation adopted as a consequence of the Select  Committee investigation - not unlike the reforms that resulted from the Church  Committee - would help ensure that future administrations follow the law and respect  individual rights, regardless of the party in power.

“These revelations are as alarming as they are predictable,” said Jameel Jaffer,  Director of the ACLU National Security Project. “The FAA set virtually no limits on  the government’s eavesdropping authority, but it appears that the NSA has disregarded  even what minimal limits existed.  The new law should have ensured that the  government’s surveillance powers would be subject to meaningful judicial oversight.   Instead the new law allowed the NSA to operate without the safeguards that the  Constitution requires.  The Bush administration argued that the law was necessary to  protect national security, but in fact the law implicates all kinds of communications  that have nothing to do with terrorism or criminal activity of any kind.  The law was  ill-advised, and today’s report only underscores that the law should be struck down  as unconstitutional.”

The ACLU’s lawsuit argues that the FAA violates Americans' rights to free speech and  privacy under the First and Fourth Amendments to the Constitution. The law permits  the government to conduct intrusive surveillance without ever telling a court who it  intends to spy on, what phone lines and email 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.
Plaintiffs in the ACLU’s  case include journalists, attorneys and human rights organizations who count on  confidentiality to perform their jobs.
They include:
The Nation and 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, Washington Office on Latin  America, and the International Criminal Defence Attorneys Association Defense attorneys Dan Arshack, David Nevin, Scott McKay and Sylvia Royce

More information about the ACLU’s efforts on FISA, including its lawsuit, are  available online at: www.aclu.org/faa


American Civil Liberties Union