ACLU Seeks to Intervene in FISA Court Proceedings

The American Civil Liberties Union is petitioning the secretive Foreign Intelligence Surveillance Court for leave to participate in future proceedings regarding the constitutionality of government procedures under the recent FISA Amendments Act, which expanded government authority to conduct intelligence surveillance.

The government opposes the ACLU petition (pdf). Justice Department attorneys wrote in a July 29 opposition motion (pdf) that since the relevant procedures are classified, “there is nothing that the ACLU could contribute to the Court’s resolution….”

The government’s opposition is misplaced, the ACLU replied yesterday (pdf), noting that it does not seek access to classified information, but only wishes to address the constitutionality questions that are before the Court.

“Because the FISA Amendments Act has such sweeping implications for the rights of U.S. citizens and residents, any consideration of these issues should be adversarial and as informed and transparent as possible,” the August 5 ACLU reply stated.

“This Court should not issue a secret opinion after hearing secret arguments — and from only one side,” the ACLU reply said. (I am mentioned in a footnote.)

In a separate proceeding, the ACLU is also challenging the constitutionality of the FISA Amendments Act in federal district court.

See “ACLU Challenges Unconstitutional Spying Law.”

The pleadings submitted to the FISA Court are also copied here.

While it isn’t Jarndyce v. Jarndyce, the famously interminable lawsuit in Dickens’ Bleak House, the current ACLU proceeding before the FISA Court is, strangely enough, Jaffer v. Jaffer.

The lead attorney on the ACLU petition is the estimable Jameel Jaffer, director of the ACLU’s National Security Program. Among the Justice Department attorneys opposing the ACLU petition is Jamil N. Jaffer, Counsel to the Assistant Attorney General.