Amnesty International May Sue Attorney General Holder and Other Officials, US Appeals Court Says

The Second Circuit has ruled that Amnesty International, Human Rights Watch, the Global Fund for Women, The International Criminal Defence Attorneys Association, SEIU, the Pen America Center, The Nation magazine, and a couple of individuals have standing to assert First Amendment, Fourth Amendment, and Articles I-III of the Constitution violations by the federal government, when engaged in unregulated monitoring of Internet speech.  The court concluded, among other things:

[A new law] does not require the government to submit an individualized application to the FISC identifying the particular targets or facilities to be monitored. Instead, the Attorney General (“AG”) and Director of National Intelligence (“DNI”) apply for a mass surveillance authorization by submitting to the FISC a written certification and supporting affidavits attesting generally that “a significant purpose of the acquisition is to obtain foreign intelligence information” and that that information will be obtained “from or with the assistance of an electronic communication service provider.” ….

Here, the fact that the government has authorized the potentially harmful conduct means that the plaintiffs can reasonably assume that government officials will actually engage in that conduct by carrying out the authorized surveillance.  It is fanciful, moreover, to question whether the government will ever undertake broad-based surveillance of the type authorized by the statute.  The FAA was passed specifically to permit surveillance that was not permitted by FISA but that was believed necessary to protect the national security.  See, e.g., 154 Cong. Rec. S227, 227-28 (daily ed. Jan. 24, 9 2008) (statement of Sen. Rockefeller) (explaining “why it is necessary for us to update” FISA); id. at 235 (statement of Sen. Hutchison) (explaining why surveillance authorization  procedures must be updated).  That both the Executive and the Legislative branches of government believe that the FAA authorizes new types of surveillance, and have justified that new authorization as necessary to protecting the nation against attack, makes it extremely likely that such surveillance will occur….

Journalist Naomi Klein reports on a wide variety of international topics, and in order to do so she communicates with sources abroad, including Mexican individuals regarding military activity in Chiapas, Argentinian advocates for indigenous rights, and indigenous Colombian groups who oppose U.S. trade policies.  Likewise, journalist Chris Hedges, whose writing focuses on American and Middle Eastern politics and society, maintains regular contact with academics, journalists, politicians, and activists in places such as Iran, Syria, Libya, Kosovo, Bosnia, and Sudan….

Furthermore, the plaintiffs have good reason to believe that their communications, in particular, will fall within the scope of the broad urveillance that they can assume the government will conduct.  The plaintiffs testify that in order to carry out their jobs they must regularly communicate by telephone and e-mail with precisely the sorts of individuals that the government will most likely seek to monitor – i.e., individuals “the U.S. government believes or believed to be associated with terrorist organizations,” “political and human rights activists who oppose governments that are supported economically or militarily by the U.S. government,” and “people located in geographic areas that are a special focus of the U.S. government’s counterterrorism or diplomatic efforts.”

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