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July 18, 2008

Okay so you may know that we sued the government last week (you know it never really gets old, suing the government) when President Bush signed the FISA Amendments Act into law. This was not a “compromise bill” or a “modernization” bill, which is how they tried to sell it. Instead Congress basically handed the President even more power to spy on Americans than he was using under the illegal warrantless wiretapping program. Super, right?

Totally classy in addition because as Sen. Arlen Specter (R-PA) pointed out, “”This may be a historical embarrassment . . .Everyone knows we don’t know what the program did.” Sans a thorough investigation, Congress decided to seek out a CYA strategy and, you know, abandon that old tricky-dicky document the CONSTITUTION.

Anyway, at the same time we were filing that lawsuit we also sent a motion to the Foreign Intelligence Surveillance Court.

Never heard of it?

That’s because it’s secret. Under the old FISA law, passed to keep the government from abusing its power, the FISC issued warrants for wiretaps and the like. But under the FAA, when the government is monitoring people abroad (even though they may be talking to or emailing with people in the United States) the FISA court is given only a peripheral role. Rather than specific warrants authorizing surveillance of particular people or places, the FISA court basically just approves the government’s surveillance procedures. The NSA doesn’t have to name the person they are spying on, or the place, or even the reason anymore. “Wait!” you say. “I thought this law was about terrorism! How come they don’t have to be seeking out information on terror, they could be seeking information on . . . well anything?” you ask. We’re wondering too.

So it is possible that when the FISC looks at whether the government’s surveillance procedures they may decide the constitutionality of the FAA. If that happens, we want to make sure that the government isn’t the only one there making arguments and that it doesn’t happen in total secrecy. So we sent them a little note and asked them to make any arguments like that public and to let us argue why the law is unconstitutional. Typically, only the government gets to communicate with the secret FISC and the government is the only party that has ever argued before in front of them. So, in addition to being constitutionally necessary to keep open the judicial process, it’d be really neat if we got to go in front of them as well. A this-has-never-happened-before and where-are-we-when-secret-courts-are-more-open-than-the-law-making-process-in-this-country kind of a way.

Today the FISC court gave us a little nugget of hope. They told the government to reply to our request by July 29th. Then we’ll reply to their reply. And then the court will issue a decision. And maybe (this is still just a big, hopeful, maybe) the court will let us argue why this law is wrong, wrong, wrong and, better yet, it may end up being a secret court (rather than Congress) that draws this unconstitutional spying out into the light and issues a public decision.

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