STF NA MÍDIA

JUSTIÇA NO EXTERIOR •
THE NEW YORK TIMES (US) • NATIONAL • 21/9/2011
Split Decision and Barbed Comments Show a Court Deeply Divided on
Wiretapping
WASHINGTON — An appellate
court decision on
Wednesday revealed deep
and lingering divisions a-
mong a dozen judges over
the government’s wiretapping
powers and the courts’
ability to regulate them. RelatedTimes
Topic: Wiretapping
and Other Eavesdropping
Devices and Methods-
Deadlocked by a 6-to-6 vote,
the United States Court of
Appeals for the Second Circuit
cleared the way for a
lower court to hear a challenge
to the Constitutionality
of broadened wiretapping
powers that Congress approved
in 2008 at the urging of
the George W. Bush administration.
The Justice Department wanted
the entire appellate court
to reconsider an earlier ruling
allowing the case to move
forward, but the split vote
means the prior ruling will
stand for now.
As significant as the decision
itself were the sometimes
barbed comments of the appellate
judges, as they clashed
over whether Amnesty
International, the American
Civil Liberties Union and
other groups should be allowed
to challenge the Constitutionality
of the wiretapping
powers.
Among those suing the government
are lawyers for
detainees at Guantánamo
Bay, journalists who cover
foreign affairs, human rights
advocates and others
who said that they had reason
to fear that intelligence officials
would use their expanded
wiretapping authorities
to intercept their international
phone calls and e-mails.
Some of the plaintiffs say
they meet clients or sources
only in person now as a result.
In an unusual turn, 5 of the
12 judges issued separate
written opinions on the question
of whether the plaintiffs
had legal grounds to sue the
government.
Judge Gerard E. Lynch, explaining
why the lawsuit
should move ahead, wrote
that the case represented an
important test of the balance
between the government’s
ability to detect national security
threats and the plaintiffs’
claims to privacy under
the Fourth amendment.
“The Constitution sets limits
on the powers even of Congress,”
Judge Lynch wrote.
“It is the glory of our system
that even our elected leaders
must defend the legality of
their conduct when challenged.”
Chief Judge Dennis G. Jacobs
was equally forceful in
arguing that the lawsuit
should not proceed. He called
the suit “frivolous” and
likened it to a “plaintiff’s
allegation that the C.I.A. is
controlling him through a
radio embedded in his molar.”
The chief judge wrote that
“the only purpose of this
litigation is for counsel and
plaintiffs to act out their fantasy
of persecution, to validate
their pretensions to policy
expertise, to make themselves
consequential rather than
marginal, and to raise funds
for self-sustaining litigation.”
The judges were unable to
agree on even the basic impact
of the 2008 wiretapping
law at issue.
The law, known as the FISA
amendments Act, grew out
of the disclosure of the Bush
administration’s secret operation
to wiretap the international
communications of people
suspected of terrorist ties,
without first going through
the courts.
With the Bush administration
citing national security threats,
Congress agreed to put in
place a new wiretapping system
allowing intelligence
officials to make decisions
about eavesdropping targets
without having to get individual
court warrants.
Judge Lynch wrote that the
law “indisputably and significantly
broadens the risk of
interception” for Americans’
communications, lowers the
burden of proof for the government
in wiretapping suspects
and decreases the oversight
role of judges.
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