16 July 2008


PEN American Center has joined the American Civil Liberties Union (ACLU), Human Rights Watch, Amnesty International and other leading rights organisations in challenging the U.S. government over the constitutionality of a new surveillance law.

According to the rights groups, the newly-enacted Federal Intelligence Surveillance Act (FISA) Amendments Act grants the U.S. administration the power to carry out and expand the illegal eavesdropping activities it has secretly engaged in since 2001.

The rights groups say the U.S. government will be able to conduct "sweeping and virtually unregulated" surveillance of international communications by its residents and citizens without identifying specific individuals or getting a specific FISA court order. Nor does it need to specify if the surveillance target is actually related to terrorism - though the threat to national security was the administration's justification for amending the law.

ACLU also wants to know what happens to surveillance information the government collects after it is deemed irrelevant to a specific case.

PEN, which believes its routine communications with writers and human rights activists overseas are vulnerable to monitoring under the programme, called the law an unnecessary violation of the constitution's protections against unreasonable searches and seizures.

"The knowledge that these exchanges could be monitored by the U.S. government undermines the trust and confidence necessary for us to gather crucial information and serve as credible and effective advocates on their behalf," says PEN.

The same goes for journalists, says a member of the coalition, "The Nation" magazine. "This law threatens their ability to gather critical information," says the magazine's editor.

PEN says the law will also undermine the rights of all U.S. citizens to engage in private phone and Internet conversations without fearing that the government is listening.

"The American people, who have lost the security of knowing that their communications can only be monitored if the government secures a FISA court order, may never learn the extent of the programme and how it is being used," says PEN.

The original Foreign Intelligence Surveillance Act (FISA), enacted in 1978 after revelations that the government had been spying on Americans without cause, requires the government to seek the approval of a secret court to carry out surveillance programmes in the U.S. "The New York Times" revealed that the Bush administration authorised a new surveillance programme following 11 September 2001 that simply ignored FISA.

Dramatic congressional testimony last year revealed that the administration repeatedly reauthorised the programme - despite the Justice Department's view that key aspects of the programme were illegal.

According to PEN, more than 40 lawsuits have been filed by customers against telecommunications companies that participated in the programme. The FISA Amendments Act also grants immunity to the telecommunications companies, and thus makes moot the lawsuits - which many believed were the best means available to expose the illegal surveillance.

If the coalition loses in the FISA Court, there may not be another chance to rein in blanket government surveillance for at least the remainder of the Congressional session - and possibly longer. Although Congress can revisit the legislation, both presidential candidates favour the act.

More than 50,000 people have already signed an ACLU campaign ad destined for "The New York Times" on 17 July at: http://tinyurl.com/5hqnlm
Visit these links:
- PEN American Center: http://tinyurl.com/57jn7l
- ACLU, including filing to FISA Court: http://www.aclu.org/faa - Good analysis of FISA Amendments Act by "The Washington Independent": http://www.washingtonindependent.com/view/spying-law(16 July 2008)

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