A lawsuit challenging a law that lets the United States eavesdrop on overseas communications more widely and with less judicial oversight than in the past was reinstated Monday by a federal appeals court that said new rules regarding surveillance had put lawyers, journalists and human rights groups in a "lose-lose situation."
The 2nd U.S. Circuit Court of Appeals said it took no position on the merits of the lawsuit brought by those in jobs that require them to speak with people overseas, saying only that the plaintiffs had legal standing to bring it against the latest version of the Foreign Intelligence Surveillance Act.
U.S. District Judge John G. Koeltl in Manhattan had sided with the government in a 2009 ruling, saying the plaintiffs lacked standing to sue since none of them could show they were subject to the surveillance. He said Americans' fears that their conversations would be monitored and their rights violated were "purely subjective."
Attorneys, journalists and human rights groups whose work might require speaking to possible surveillance targets had brought the lawsuit on constitutional grounds, saying new government procedures for eavesdropping on international communications forced them to take costly and burdensome steps to protect the confidentiality of their overseas communications.
In a lengthy written ruling, the 2nd Circuit said the plaintiffs had standing to sue in part because they had established that they had a reasonable fear of injury from the surveillance and had incurred costs to avoid it.
A three-judge panel of the appeals court wrote that the new regulations had "put the plaintiffs in a lose-lose situation: either they can continue to communicate sensitive information electronically and bear a substantial risk of being monitored under a statute they allege to be unconstitutional, or they can incur financial and professional costs to avoid being monitored."
The appeals court said its ruling "does not mean that their challenge will succeed; it means only that the plaintiffs are entitled to have a federal court reach the merits of their challenge."
A spokeswoman for government lawyers who argued the case said they had no comment.
Jameel Jaffer, deputy legal director for the American Civil Liberties Union, called the ruling a "watershed opinion."
"For too long, the government has used unwarranted secrecy to shield intrusive surveillance programs from constitutional scrutiny," he said. "The government's surveillance practices should not be immune from judicial review, and this decision ensures that they won't be."
The plaintiffs had argued that the new procedures made it possible for the U.S. to seek to review all telephone and email communications to and from countries of foreign policy interest, including communications made to and from U.S. citizens and residents.
"This is a statute that allows the government to engage in dragnet surveillance of Americans' international communications. As far as Americans' international communications are concerned, the statute eliminates the probable cause and warrant requirements altogether," Jaffer said.
The appeals court noted plaintiffs' declarations citing individuals whose work might be affected by the eavesdropping procedures. Those individuals included a lawyer for self-professed Sept. 11 mastermind Khalid Sheik Mohammed who regularly communicates with Mohammed's family members, experts and investigators around the world.