Second Circuit Rejects Obama Administration’s Effort to Block Privacy Lawsuit

In a significant victory for civil libertarians and a loss for the Obama Administration, the Second Circuit has reinstated a lawsuit based on the unlawful warrantless surveillance programs launched by former President George W. Bush. The Obama Administration has been aggressively fighting to kill this privacy lawsuit as it has dozens of other lawsuits seeking judicial review of the unlawful program. The case is Amnesty v. Blair.

The Court found that there was sufficient evidence to support standing for the plaintiffs, including the fact that such violations are likely continuing.

In July 2008, Congress passed the FISA Amendments Act (FAA) of 2008. The lawsuit attacks the constitutionality of the FISA amendments (passed with the support of Democrats leadership), which allows the government to electronically eavesdrop on Americans without probable cause in violation of the Fourth Amendment.

The Second Circuit reversed the decision of U.S. District Court Judge John G. Koeltl of the Southern District of New York from August 2009. Koeltl dismissed the lawsuit by saying that he did not believe that the Plaintiffs could prove that their own communications had been monitored while simultaneously not allowing the Plaintiffs discovery to prove that they were monitored under the secret program. This ruling followed the arguments of the Obama Administration that, so long as it refused to reveal information on the secret program, citizens could not sue because they could not establish standing.

The Second Circuit ruled that there was sufficient evidence to support standing.

[T]he plaintiffs have good reason to believe that their communications in particular, will fall within the scope of the broad surveillance 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 geographical areas that are a special focus of the U.S. government’s counterterrorism or diplomatic efforts.” The plaintiffs’ assessment that these individuals are likely targets of [FISA Amendments Act] surveillance is reasonable, and the government has not disputed that assertion.

The plaintiffs are Amnesty International USA, Global Fund for Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation magazine, PEN American Center, Service Employees International Union, Washington Office on Latin America, Daniel N. Arshack, David Nevin, Scott McKay and Sylvia Royce.

19 thoughts on “Second Circuit Rejects Obama Administration’s Effort to Block Privacy Lawsuit”

  1. Dear Kay;

    We have followed your case – and in many ways – walked a similar pathway (though different circumstances) with the powers that be. Including the DOJ.

    Please remember – less is more! Be succinct. I have great empathy and such for your case and cause.

    Hang in there and continue the fight.

    Laser Haas

  2. Part of it probably has to do with people not knowing history. Part of the reason that my husband and I are totally freaked out by DOJ advocating that it had the right to hold me without charges and without a bail hearing of 5 months is that we are older. When we were in college my husband came to know a man who was in a Soviet prison without charges for years and we met Holocaust survivors. Did you ever see the documentary Night and Fog? I watched it with a friend who had scores of relatives who were exterminated. He was descended from Polish Jews. His father was in Auschwitz for 5 years. So every time I read the Privacy Act I think about the Holocaust. My husband and I feel that we are fighting to keep another Holocaust from happening and the DOJ is enabling another Holocaust through its litigation policies. In my case DOJ actually advocated that it should not be liable for summary incarceration and that that is not a crime even though the FBI web site says it is. DOJ also advocated that Chapter 42 doesn’t protect caucasions. They claimed in writing that 18 USC section 242, Deprivation of Rights Under Color of Law requires race based animus for a crime even though DOJ is actively criminally prosecuting various people for sexual assaults on same race prisoners.

  3. See, its moments like this that make me think we actually have a sliver of hope. Which is a stupid thing to believe. The Republicans are actively working to destroy the country, to turn it into a third-world tin-pot oligarchy as fast as humanly possible. The Democrats, as a national party, are willing to allow this to happen as long as it does not happen too fast – in some ways thats worse as people don’t notice that they are being screwed over because it is done slowly.

  4. Does anyone here care to discourse about 42 USC as a whole document including also Congressional notes? The idea is that there are not only statutes, there are chapters such as the Administrative Procedure Act and the statutes within the chapters support and supplement each other….. This is part of the principles of statutory interpretation.

    I would really like to hear back about this subject.

  5. Mike Spindell 1, March 22, 2011 at 12:18 pm

    Auntee Social, BS, MS, Phd,

    The BS is quite apt for you. Are you having fun yet?


    Actually Mike,

    BS MS Phd is all quite apt for Auntee social.

    You what BS is…

    Well MS is more of the same.

    And Phd, is piled higher and deeper.

    We all know that smell.

  6. I also have a pending Privacy Act lawsuit with DOJ.

    This is a lot harder because we are “pro se”.

    Our claims have to do with DOJ’s USMS component creating Joint Automated Booking System records on me to detain me without a criminal charge or a bail hearing for over 4 months. I have tolling and a fresh claim on that because less than two years ago DOJ wrote three times that the records they had on me were confined to the Prisoner Tracking System and the Warrant Information Network. However, in December of 2010 they mailed me Joint Automated Booking System records. The JABS is a separate system of records from PTS and WIN. It was separately published in the Federal Register and separately audited by OIG in 2005, which found a 3% rate of inaccurate entries in a small sample. In its Federal Register publications, DOJ asserted that misuse of JABS should not result in potential to sue the government under 5 USC section 552a g (1). However, there were apparently complaints about that because in the final Privacy Act statement about JABS, published in the Code of Federal Regulations, JABS is not completely excluded as the basis of a Privacy Act damage complaint. In my case, my husband had notified DOJ that I was in detention without a criminal charge and DOJ did not release me and in fact after acknowledging my complaint, re-detained me for three weeks again without a bail hearing or criminal charge. The USMS JABS user manual apparently did not include a requirement for a confirmation by an authorized federal prosecutor that there is a criminal charge even though state booking systems do include that software feature — an easy software feature similar to having a commercial system send a notice of customer registration, completion of order or entry of payment to a business.

    I also have an e(7) claim because USMS had records of my civil lawsuit against convicted drug dealer Kevin Bennett and the City of Steamboat Springs Colorado without an authorized law enforcement function. In Sieverding v. DOJ # 1, DOJ pled that USMS detention of civil litigants for failure to appear in a civil hearing in which the government is not involved is an “authorized law enforcement function”. DOJ filed yesterday that that is settled law. In fact it is not settled law because DOJ violated the Administrative Procedure Act to get that finding by using unpublished procedure. First of all, when I was held for four months, I had shown up, on time, the first time a hearing was scheduled and was then summarily imprisoned. As far as the other times, the entire federal code is now computerized and has advanced search functions. There is no disclosure anywhere about an USMS authorized law enforcement function if a person fails to go to a federal court hearing that does not involve the government. In fact, in NYE et al. v. UNITED STATES et al 313 U.S. 33 61 S.Ct. 81085 L.Ed. 1172, the Supreme Court ruled that interactions in civil litigation
    outside of the courtroom cannot be the basis for summary incarceration.

    This is discussed in the APA “Except as otherwise required by law, requirements or privileges relating to evidence or procedure apply equally to agencies and persons” and “Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published”

    In its Federal Register publications, DOJ represented that JABS would ONLY be used for arrest based on a criminal prosecution. Now, they are trying to take advantage of our pro se status to secure caselaw that the government has immunity for creating JABS records, i.e. arresting and detaining people, taking their social security number without a statutory purpose (another PA violation in an uncodified portion published by Homeland Security), fingerprinting and then long term detention without a bail hearing. And the FBI has already written to me that it did not have a search warrant. I am not moslem, was born in the U.S. as the child of citizens, one of whom is a veteran, have never owned or even touched a gun and have been a gun control advocate my entire life, and have no criminal record. The First Amendment protects me from DOJ incarceration for my words unless I break a federal law. DOJ did not claim that I broke a federal law and admitted that I was incarcerated for my words in a third party civil lawsuit. DOJ’s Privacy Act case law website even explicitly acknowledges that court filings are included as First Amendment records under 5 USC section 552a e(7). I verified my lawsuit pleadings under penalty of perjury under U.S. law and was not accused of perjury nor of fraud with any specificity. No counterclaims were filed against me in my civil lawsuits, there were no rule 11 c. 6 orders. The only sanctions that were recommended were described in the magistrates report as being “sua sponte” and in the Federal Register it is stated that sua sponte sanctions cannot be implemented without an order to show cause, but none was filed. There was no memorandum opinion and no jury trial and I was deprived of my rights under 42 USC section 1981 as amended in 1991 to reflect Supreme Court rulings such as Patsy v. Board of Regents of State of Florida, 457 U.S. 496 (1982), Young v. United States Ex rel, Vuitton et fils s.a. et al. 107 S. Court 2124, 481 US 787 and Dennis v. Sparks et al., 101 S. Ct. 183, 449 U.S. 24 (U.S. 11/17/1980)

    This really scares my husband and I because not only do we have our personal interests, but also DOJ is removing barriers to setting up concentration and extermination camps. It is huge for the government to argue that it can act with impunity to create computerized records accessed in the name of individuals in computerized systems that are the gateway computer systems to detention without a criminal charge recognized by statute, an authorized law enforcement function published in the Code of Federal Regulations, or a criminal act recognized in international law as required by the United Nations Covenant for a person who was unlawfully detained to be denied compensation.

    I originally filed in federal court because I read in Patsy “The 1871 Congress intended § 1 to “throw open the doors of the United States courts” to individuals who were threatened with, or who had suffered, the deprivation of constitutional rights, id. at 376 (remarks of Rep. Lowe), and to provide these individuals immediate access to the federal courts”. Patsy v. Board of Regents of State of Florida, 457 U.S. 496 (1982)

    My original complaint was clearly a federal matter under section 1983. I sued the president of a city council who was my adjoining neighbor and used Color of Law to benefit his property and move his property line through criminal acts. I met all the claims required by the 10th Circuit for First Amendment Retaliation in a non employment context. The city council president’s wife is reported on police documents for demanding criminal prosecution of me because I complained that she and her husband had violated the constitution and the zoning. She was the ONLY signature on any document and her signature as police officer, when she was only the wife of the city council president and not a police officer, violated Colorado Rules of Criminal Procedure. That is the exact criteria specifically acknowledged as a basis for First Amendment Retaliation by the Supreme Court in Hartman v. Moore 547 U.S. 250 (2006). I also suffered a real fourth amendment liberty restriction because based on the representation that there were criminal charges (for which an arraignment was never held)a permanent restraining order was issued on me. The prosecutor did not appear in that action and there was no basis in statute for it and I was denied injunction procedure without the statutory requirements for abbreviated procedure being met. The city council president’s lawyer in his presence called a city planning services director to the stand and under oath she lied both about the city code about her credentials,twice misrepresenting herself as a certified planner, (an AICP member) when she was not certified. There was a sua sponte finding that I did a sexual act with the city council president’s wife who did not claim that I did so although she was available to testify if I had. Written procedure required that if I was to be accused of “molestation” it had to be done in writing but it was not.

  7. Auntee Social, BS, MS, Phd,

    The BS is quite apt for you. Are you having fun yet?

  8. This decision is the best news in a long time. Maybe now the illegal spying that started in the Bush administration and is still going on in the Obama Administration will be exposed. Kudos to the plaintiffs. Let’s hope the Supremes don’t rain on our parade.

  9. Oh, goody. Here we are another antisocial psychopath. What has happened today to make you wake up and still be so bitter? What are you doing to change the way you think and act today? Are you really a hate monger? Spreading your iridescent light-bulb that is not fully charged?

  10. It is interesting to note whom the government considers its “enemies”. Those would be critics, peace activists, people advocating for enforcing our Constitutional rights, advocates for justice for the poor, for women (as in surveillance of Planned Parenthood) and other such “evil” types of people in our society.

    The targets of this surveillance make clear what the govt. is really about. It does not give a fig about terrorists. It wishes to crush dissent (see Bradley Manning).

    Der Speilgal just published 3 pictures out of 4000 showing some of our troops in Afghanistan holding up trophy heads they took from Afghan civilians. It is likely the govt. will put all possible effort into finding and punishing the person who leaked those photos. Excerpt: ” WASHINGTON – March 22 – Yesterday Afghans for Peace learned that a German news organization, Der Spiegel, released 3 of some 4,000 photographs and video footage showing gruesome images of US soldiers and corpses of innocent Afghans they murdered in Kandahar last year. The photographic evidence exposes the crimes committed by a “Kill Team”, where U.S. soldiers randomly targeted and murdered Afghan civilians for sport, followed by an attempt to cover them up. These appalling and inhumane acts are condemned by AFP.


    The first photograph shows U.S. soldier, Spc. Jeremy N. Morlock, posing with the bloodied and partially naked corpse of Gul Mudin, grabbing the victim by his hair, and grinning proudly at the camera with his trophy kill. From close observation, the victim’s body appears slim and hair-less, suggesting he was very young and had not yet reached puberty.” (see Common Dreams)

    This govt. is completely out of control. I know we will be told to vote for Obama so we can have 4 more years of such atrocities and finish off our Constitution. But I’m not willing to stand by and wait for this to happen. There must be some time when citizens say, “this is enough”. We need more people to stand up and say to the current govt., “you may not do these illegal and immoral things in my name”. I do not give consent. Peacefully resist.

  11. Well, well … maybe, just maybe, the Constitution has some standing after-all.

  12. We have the right to privacy and China is blocking google…. wow…what will they think of next…

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