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Why We're Challenging the FAA

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On Wednesday, July 22, PEN American Center will join the American Civil Liberties Union in court to challenge the FISA Amendments Act (FAA), which greatly expanded the ability of the U.S. government to spy on Americans without a warrant.

PEN is an 87-year-old organization that defends writers and the freedom to write around the world. We are plaintiffs in this lawsuit first and foremost because we believe our own communications, which include sensitive phone calls and emails with writers facing persecution in countries from Afghanistan to Zimbabwe, are vulnerable under the program.

Like our coplaintiffs in the case, which include human rights, labor, legal, and media organizations, we rely on confidential international communications to carry out our work. The trust we depend on is hard-won: those with whom we work abroad have often been monitored, imprisoned, or persecuted in their countries, and some of them are living and working in countries where a history of cooperation between their governments and U.S. intelligence agencies has left a legacy of fear and distrust of the United States. The fact that the National Security Agency (NSA) now has nearly limitless authority to monitor our international calls and emails severely compromises our ability to communicate freely with our endangered colleagues, undercutting our ability to ascertain and serve their needs.

But surveillance powers like those the National Security Agency now possesses do more than damage our ability to do international human rights work. We know from the experiences of our colleagues in countries where governments had unchecked surveillance powers (including the United States as recently as the 1970s) that programs that allow governments to spy on their own citizens are often directed against writers and intellectuals, and that surveillance in general poses a serious threat to the intellectual and creative freedoms of all citizens.

While its full scope remains unknown, the surveillance program that the Bush administration first implemented late in 2001 clearly gave the National Security Agency unprecedented power to monitor telephone and internet communications, and concerns about its constitutionality have surfaced repeatedly. In 2004, the Department of Justice even refused to provide the legal certification necessary for reauthorization of the original program because top department officials -- all Bush appointees -- were not convinced of its legality. When elements of the program were finally exposed in 2005, however, Congress failed to hold accountable the officials who had authorized it or to put new legislative protections in place. Instead, in 2008 it passed a new law -- the FISA Amendments Act -- that not only granted immunity to telecommunications companies for their participation in the NSA program, but also provided the executive branch with even broader authority to monitor the communications of innocent people.

Wednesday's hearing is the first in a lawsuit specifically targeting the constitutionality of the FISA Amendments Act. It comes amid new and disturbing revelations about the NSA's surveillance activities. Earlier this month, the Inspectors General of the NSA, CIA, Defense Department, Justice Department, and the Office of the Director of National Intelligence released a report describing a surveillance program that was far larger than previously acknowledged; that report, too, questioned the legal basis for the program the Bush administration launched in 2001 and revealed that most of the intelligence leads generated by the program had questionable relevance to terrorism investigations. Meanwhile, ongoing Congressional investigations have uncovered new information suggesting that the NSA continues to scrutinize emails on a scale that may even violate the terms of the FISA Amendments Act.

First the Bush administration and now the Obama administration insist that these surveillance powers are necessary to protect the country from individuals and groups that threaten national security. In fact, the laws that the FISA Amendments Act eviscerated were specifically crafted to ensure the U.S. government could spy on suspected terrorists and other foreign threats. What those laws also guaranteed, however, was that the constitutional right of American citizens and residents to be secure against unreasonable searches was protected. History has repeatedly shown how, without such protections, surveillance in the name of national security often extends to spying on peaceful political activists, journalists and writers, and other ordinary, law-abiding citizens.

So we are heading to court, asking a federal judge to strike down those provisions of the FISA Amendments Act that allow unchecked, warrantless surveillance of our telephone and email communications. And we will continue to press the Obama administration and Congress to rein in a range of post-9/11 surveillance powers that threaten the right of our members, and all American citizens and residents, to read, write, and communicate freely without fearing that our government is listening in or gathering private, First Amendment-protected information.