As a senator running for president, Barack Obama condemned the Bush administration’s warrantless monitoring of Americans’ international communications yet voted to retroactively legalize it by amending the Foreign Intelligence Surveillance Act (FISA). According to a lawsuit that a federal appeals court recently allowed to proceed, those amendments violate the Constitution.
The American Civil Liberties Union (ACLU) argues that FISA Amendment Act of 2008 violates the Fourth Amendment’s guarantee against unreasonable searches because it allows the government to conduct surveillance with almost no judicial oversight, without naming the target, and without claiming a direct link to terrorism. The ACLU also claims such surveillance has a chilling effect on speech, in violation of the First Amendment.
The U.S. District Court for Southern New York dismissed the lawsuit in 2008 because the plaintiffs—who in addition to the ACLU include Amnesty International and several journalists and attorneys—could not show that the government had secretly spied on them. But in September the U.S. Court of Appeals Second Circuit revived the case, ruling that the plaintiffs do have standing to challenge the law after all.