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.