Federal court tosses challenge to overseas wiretap law

Friday, August 21, 2009

NEW YORK — A judge rejected a challenge to a law letting the United States eavesdrop on overseas conversations yesterday, saying the plaintiffs lacked standing to sue because fears that their conversations would be monitored and their rights violated were “purely subjective.”

U.S. District Judge John Koeltl ruled in Amnesty et al. v. Blair (formerly Amnesty et al. v. McConnell) that the latest version of the Foreign Intelligence Surveillance Act could not be challenged by attorneys, journalists and human rights organizations unless they could show their own communications had been affected.

The law, which was amended last year, authorizes surveillance of telephone conversations and e-mail exchanges involving non-U.S. citizens overseas to acquire foreign intelligence information.

The law was challenged by The Nation magazine, Amnesty International, Human Rights Watch, a group of international criminal defense lawyers and an organization of women, among others. (See statements from Nation contributing journalists Naomi Klein and Chris Hedges, a friend-of-the-court brief from the Reporters Committee for Freedom of the Press, and other documents in the case.)

The plaintiffs say their work causes them to speak with people and organizations they believe are possible surveillance targets under the law. They argue that the statute violates the First Amendment by chilling “the constitutionally protected speech of Americans who fear that their telephone calls and emails will be subject to surveillance.”

Jameel Jaffer, an American Civil Liberties Union lawyer who argued for the plaintiffs, said he was disappointed because the ruling meant the law “might not be subjected to judicial review at all.”

He said the requirement that an American be able to show communications were directly affected makes it virtually impossible to challenge the law.

“This statute allows the mass acquisition of Americans’ international communications,” Jaffer said.

He said the United States could theoretically “sweep up thousands or even millions of Americans’ international communications without reference to individualized suspicion.”

Jaffer said the U.S. government could decide to intercept all communications between New York and London, for instance.

He said the ruling “effectively means that Americans’ privacy rights will be left to the mercy of the political branches. That’s disturbing.”

Yusill Scribner, a spokeswoman for U.S. government lawyers in New York, had no comment.

The judge noted that the plaintiffs made no claim that their communications had been monitored or that the government had sought approval for such surveillance.

Koeltl said the mere fear of surveillance was not enough to bring a lawsuit. He said “the chilling of their speech that [the plaintiffs] attribute to the statute is actually the result of their purely subjective fear of surveillance.”

The judge wrote that the plaintiffs had failed to show they were subject to the law, “other than by speculation and conjecture.”

“The plaintiffs in this case have made no showing that they are subject to the statute they seek to challenge, and therefore have made no showing that they face a danger of being harmed,” Koeltl said.

He added that “the plaintiffs’ reluctance to engage in their desired speech is self-imposed because their fear of surveillance under the [statute] is an abstract and hypothetical one.”

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