Everything NSA does is classified and secret. It menaces freedom. It's unaccountable. It's shielded from prosecution.
Given today's technological capabilities, it's more dangerous than anyone could have imagined decades earlier. Big Brother expanded exponentially. Fourth Amendment protections were gutted. Freedom hangs by a thread.
The ACLU fought back. It faces stiff headwinds. It's challenging FISAAA's constitutionality. It's doing it on behalf of a group of lawyers, journalists, labor advocates, and human rights groups.
They fear their unjustifiable foreign and domestic monitoring of privileged communications. Witnesses and sources used deserve confidentiality. Lawyers and journalists are obligated to provide it.
In 2009, a district court dismissed the case on the grounds that ACLU clients couldn't prove they were being monitored. In 2011, the Second Circuit Court of Appeals ruled their case has merit.
It rejected Washington's Catch-22 argument about not needing to identify individuals it's monitoring. Claiming only persons aware they're being watched may challenge the legitimacy of doing it doesn't wash.
Last May, the Supreme Court took the case. On October 29, justices heard arguments in Amnesty et al v. Clapper: FISA Amendments Act Challenge
ACLU lawyers challenged government authority. At issue they said is a "narrow one: whether our clients have legal 'standing' to challenge the law. But it is also about the ability of the executive and legislative branches to insulate a policy from meaningful review."
ACLU deputy legal director, Jameel Jaffer, argued the case. "We were pleased with today's argument," she said. "The court seemed appropriately skeptical of the government's attempts to shield this sweeping surveillance law from meaningful judicial review."
"The justices seemed appropriately sympathetic to lawyers, journalists and human rights researchers who are forced to take burdensome precautionary measures because of the law."
On October 29, ACLU National Security Project Legal Fellow Mitra Ebadolahi headlined "Today at the Supreme Court: The Right to Challenge Warrantless Wiretapping," saying:
At issue are fundamental constitutional rights. Justices heard Jaffer's powerful argument. "For example, David Nevin has served as defense lawyer for accused terrorists."
He needs secure telephone and online communications with "experts, witnesses, family members, and his clients abroad."
It's essential to building an effective defense. Lawyers are also obligated to assure confidentiality for cooperating witnesses and other sources. Their profession ethically binds them. The same holds for journalists.
Government lawyers argued that ACLU clients don't know for sure they're being surveilled. Moreover, identities of people spied on is secret. National security requires they not be identified or disclosed. As a result, plaintiff's suit has no merit.