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First test of new wiretap law’s constitutionality

A progressive advocacy group, engaging the federal government in a prolonged dispute over warrantless electronic eavesdropping, moved on Friday to expand that lawsuit to include a challenge to the constitutionality of the new wiretap law, the so-called “Protect America Act.” The Center for Constitutional Rights thus became the first group to ask formally that the law be struck down; it acted five days after President Bush signed the measure, now Public Law 110-55.

In a motion to file a supplemental complaint (download here), and in the proposed new complaint (download here), the CCR argues that the new legislation violates the First Amendment and the Fourth Amendment. The First Amendment claim is based on CCR’s belief that its attorneys have been overheard by illegal wiretaps during private telephone calls or e-mails to clients or witnesses and perhaps other attorneys outside the U.S., intruding on attorney-client confidentiality. The Fourth Amendment claim is based on the argument that this overhearing was done without a warrant and with no suspicion of any criminal activity.

CCR lawyers had signaled their intention to file the new challenge at a hearing on Wednesday before U.S. District Judge Vaughn R. Walker in San Francisco. The hearing had been scheduled under an order in late June, to focus on competing motions for summary judgment and on the government’s motion to dismiss the case because its continuation would violate the “state secrets privilege.” A day before the hearing, the government filed a notice to inform Judge Walker formally of the passage of the new wiretap law, arguing that it bolstered the government’s move for dismissal.

The CCR case is one of a number of lawsuits challenging government warrantless wiretapping; the cases have been consolidated for initial processing by Judge Walker. In its original lawsuit, CCR challenged the so-called Terrorist Surveillance Program that President Bush acknowledged after it had been disclosed by the New York Times. The program involved warrantless electronic eavesdropping outside the requirements of the Foreign Intelligence Surveillance Act of 1978. That specific program has since been replaced by what appears to be a broader program, now with some form of as-yet-undisclosed approval by the secret court that oversees FISA wiretaps.

But, in CCR’s new complaint, it argued that the new Protect America Act goes even further, allowing warrantless wiretapping globally, including calls and e-mails involving U.S. citizens inside the U.S., so long as officials indicate they are seeking to target someone overseas. The new law, CCR contended, “substantially expands statutory authority of the government to wiretap communications without warrants or any similar meaningful judicial oversight, and without probable cause of criminal activity.”