The Bush Administration's contention that Americans couldn't challenge its warrantless wiretapping law because no one could prove they were spied upon was thrown out by an appeals court Monday afternoon, allowing a challenge of the program's constitutionality to proceed.
In a unanimous decision, judges on the Second Circuit Court of Appeals found that the surveillance program could be challenged on the grounds that its existence caused an assortment of journalists, attorneys and human rights groups to fear their privileged communications may be intercepted.
An earlier lawsuit filed by the American Civil Liberties Union (ACLU), which sought to challenge the FISA Amendments Act, was thrown out by a lower court judge who accepted the government's argument that if one cannot prove one was the target of electronic surveillance, one cannot sue over it.
It was that argument in particular which was roundly rejected on Monday afternoon, in a ruling that effectively reinstated the ACLU's challenge to the FISA Amendments Act.
That challenge was originally filed on behalf of a series of journalists and activists who claimed their livelihoods were affected by the existence of the wiretapping program.
Although a lower court rejected their claims, the plaintiffs were able to show on appeal that the laws forced them to take "costly and burdensome steps" to prevent the interception of their communications.
"The appeals court have overturned that decision, finding that our plaintiffs have standing because they've been injured by the law," ACLU attorney Jameel Jaffer explained. "They have had to take costly and burdensome steps to prevent their privileged communications from being intercepted and the costs were enough to give the plaintiffs standing."
Their next step is to challenge the constitutional standing of the FISA Amendments Act.
"Our argument is that this statute, the FISA Amendments Act, gives the government sweeping power to wiretap without adequate oversight procedures," Jaffer added.
Groups party to the suit included Amnesty International and Human Rights Watch, along with journalists Naomi Klein and Christopher Hedges.
"Americans shouldn't have to accept as a fact of life that the government may be monitoring their international emails and phone calls and they can do nothing about it," the ACLU said in an advisory.
The wiretapping program, revealed in 2005, caused public outcry for appearing to contradict not only standing law, but also President George W. Bush's own words from a speech in which he told Americans warrants were required for wiretapping. Opponents argued that US privacy guarantees meant the intelligence agencies should seek court warrants from the FISA court to conduct such spying inside the country.
The FISA court was set up after the administration of Republican President Richard M. Nixon, as a response to his use of wiretapping capabilities to spy on his political opponents.
President Obama, as a candidate, vowed to "filibuster" the FISA Amendments Act, but instead voted for it after securing the Democratic nomination to the presidency. He's since vowed to conduct a full review of the nation's wiretapping program, but had not done so at time of this writing.
The Obama Justice Department has upheld the Bush administration's arguments in defense of the program.