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Checkpoint Washington
Posted at 03:04 PM ET, 09/21/2011

Court allows challenge of U.S. surveillance law

A group of plaintiffs hoping to mount a challenge to U.S. surveillance law secured a major victory Wednesday when a federal appeals court upheld their standing to sue the government.

The Second Circuit Court of Appeals’ 6-6 decision allows a group of American lawyers, human rights activists and journalists to challenge the constitutionality of the Foreign Intelligence Surveillance Act as amended by Congress in 2008.

The revision expanded the government’s surveillance authority, permitting intelligence agencies to collect information on U.S. soil without a warrant identifying a particular individual -- as long as the government could assure a surveillance court that its targeting procedures are designed to find people who are not U.S. persons and who are overseas.

The U.S. government has typically attempted to block such challenges by arguing that litigation would reveal state secrets or that the plaintiffs lack standing to sue. But in March, a three-judge panel accepted the argument of the plaintiffs, represented by the American Civil Liberties Union, that the law had harmed them by forcing them to take draconian measures to avoid government interception of their phone calls and e-mails to overseas clients.

In other words, the plaintiffs in the case, Amnesty International v. Clapper, had standing.

The split decision Wednesday effectively upholds that ruling.

“To reject the plaintiffs’ arguments not because they lack merit, but because we refuse to hear them, runs a much graver risk than whatever invasion of plaintiffs’ privacy might be occasioned by the surveillance authorized by the challenged statute,” said Judge Gerard E. Lynch.

The dissenting judges argued that the standing issue should now be addressed by the U.S. Supreme Court.

The ruling marks the first time any group of plaintiffs has gotten so far in the effort to challenge the constitutionality of the law as it was revised in 2008.

“The government’s surveillance practices should not be immune from judicial review,” ACLU Deputy Legal Director Jameel Jaffer said. “And this decision ensures that they won’t be.”

The Justice Department declined to comment on Wednesday’s ruling.

By  |  03:04 PM ET, 09/21/2011

 
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