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ACLU, Government Square Off Over Warrantless Wiretaps Abroad
New York Law Journal
July 23, 2009
Lawyers for the American Civil Liberties Union and the U.S. government squared off Wednesday over amendments to the Foreign Intelligence Surveillance Act (FISA) allowing warrantless eavesdropping abroad.
Southern District of New York Judge John G. Koeltl held an extended hearing yesterday on the impact of the 2008 amendments on the constitutional rights of Americans communicating with foreign nationals who are being monitored by the U.S. government.
Jameel Jaffer of the ACLU argued that the 2008 amendments violate the Constitution because they allow the interception and taping of "thousands and possibly millions" of phone calls, e-mails and other communications involving Americans without warrants or probable cause.
But Anthony J. Coppolino, special litigation counsel with the U.S. Department of Justice, and Assistant U.S. Attorney Serrin Turner said the statute has mechanisms to protect Americans who are "incidental" to communications with foreigners targeted out of concern for the national security or foreign policy interests of the United States.
The plaintiffs challenging the FISA Amendments Act, 50 U.S.C. §1801, in Amnesty International v. McConnell, 08 Civ. 06259, include journalists, human rights groups such as Amnesty International USA and the International Criminal Defense Attorneys Association.
Claiming violations of the First and Fourth amendments and the separation of powers, the ACLU has asked Judge Koeltl to declare the FAA facially unconstitutional.
The government wants the suit dismissed, and it has defended the surveillance of communications made by non-U.S. citizens abroad as part of an "early warning system" against a possible terror attack or strike against U.S. troops.
The government has insisted in court filings that the act only allows warrantless surveillance targeted at foreign persons abroad "and cannot be used to target U.S. persons or any persons inside the United States."
But the ACLU contends there are no meaningful protections for an American who may be on the other end of the phone call or e-mail.
The threshold issue yesterday was whether or not the plaintiffs have standing to challenge the law. If the judge decides the plaintiffs do have standing, the next question, Jaffer said, is whether the warrant requirement applies, and, if not, whether the statute meets the standard of "reasonableness."
The plaintiffs, Jaffer said, have standing because "they have a well-founded fear that their communications will be monitored," and "you don't have to wait until your injury is consummated" to bring suit.
Moreover, he said that some plaintiffs, particularly lawyers, "have already suffered a concrete injury" in the form of "costly and burdensome trips to gather information they would normally get by phone."
Included with the ACLU's brief was an affidavit from Stephen Gillers, a professor at New York University School of Law, who wrote that the extra precautions, such as traveling to meet clients, taken by the attorneys actually are ethically mandated.
The New York City Bar echoed that sentiment in an amicus brief it filed in support of the ACLU, saying warrantless wiretapping invades the confidentiality of the attorney-client relationship.
But Coppollino told the judge, "I don't think the issue of standing is a terribly close one."
"They talk to people overseas on matters of foreign policy and they fear surveillance," Coppollino said. "That is insufficient as a matter of law and fact to invoke Article III jurisdiction."
Coppollino said the case law stands for the proposition that the "mere threat of government action" is insufficient to meet the case or controversy requirement of Article III and plaintiffs must be required to show "they have been personally subject to government action that causes concrete injury" or poses an "imminent threat" of injury.
"You cannot build jurisdiction on conjecture or a hypothetical," he said.
Turner told Judge Koeltl that, for the plaintiffs to prevail, they would have to demonstrate the statute is "incapable of constitutional application."
He argued that the plaintiffs wanted the judge to "preempt" the Foreign Intelligence Surveillance Court.
'NOTHING NEW'
Under the act, Turner explained, domestic calls cannot be monitored and "the statute doesn't permit the reverse targeting of Americans" -- the intercepting of a foreigner's call abroad as a way to get at an American.
"If the government is conducting surveillance with the intention of surveilling an American, the government is going to have to get a traditional FISA order," he said.
Turner said the plaintiffs wanted to "treat aliens abroad to the full regalia of constitutional protection," and "that would be a true revolution in Fourth Amendment law and a radical departure from decades of past practice."
"Warrantless surveillance of this kind is nothing new," he said. "It's been allowed by the FISA for 30 years."
He said the plaintiffs want to "maximize constitutional protection when the Constitution requires only minimal protection," and the plaintiffs "continually understate the government's interest here," which is to identify a threat and move quickly, often in zones where U.S. troops are "in harm's way."
But Jaffer countered that there was a real question over whether the surveillance court "has jurisdiction to consider the facial validity of the statute," and, in any event, Congress has taken no steps to place jurisdiction exclusively with the Foreign Intelligence Surveillance Court.
"This is a not a challenge about the possibility of abuse. We are not saying they will target Americans," Jaffer said. "This is about the concern they will use the statute exactly the way it's supposed to be used."
He said the government said in its brief that the statute "was enacted specifically to address communications to which Americans may be a party," a proposition with which Jaffer wholeheartedly agreed.
Judge Koeltl took the matter under advisement.
