ACLU Criticizes Decision That Will Allow Constitutionality Of Government Surveillance To Be Decided In Secret

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WASHINGTON - In a decision issued late Thursday, a Foreign Intelligence Surveillance Court (FISC) judge denied a motion from the American Civil Liberties Union seeking to bring a measure of transparency to the court's legal review of the Bush administration's new spying law.

On July 10, less than two hours after the president signed the FISA Amendments Act (FAA) into law, the ACLU filed legal papers asking the FISC to ensure that any proceedings it might conduct relating to the scope, meaning or constitutionality of the FAA be open to the public to the extent possible. The ACLU also asked the secret court to allow it to file a brief and participate in oral arguments, to order the government to file a public version of its briefs addressing the law's constitutionality and to publish any judicial decision that is ultimately issued. The FISC oversees intelligence surveillance, typically operates in secret and hears arguments only from the government.

The following can be attributed to Jameel Jaffer, Director of the ACLU National Security Project:

"It's disappointing that the intelligence court intends to adjudicate these important legal issues in complete secrecy. The new surveillance law affects all of us because it allows the executive branch virtually unfettered access to the international telephone and email communications of U.S. citizens and residents. The Bush administration says that the new law is necessary to protect the country against terrorism, but there's nothing in the law that prevents the government from monitoring the communications of innocent Americans. Especially given the serious questions about the new law's constitutionality, the court's consideration of these issues should be adversarial and as transparent and informed as possible. The intelligence court should not be deciding important constitutional issues in secret judicial opinions issued after secret hearings at which only the government is permitted to appear."

Thursday's FISC decision, which is signed by Judge Mary A. McLaughlin, is available here: www.aclu.org/safefree/nsaspying/36590lgl20080828.html

When the ACLU filed its motion with the FISC, it also filed a separate legal challenge to the new law in the United States District Court for the Southern District of New York. More information about that legal challenge is available online at: www.aclu.org/faa