[In] a move that shocked many people at the time -- though which turned out to be completely consistent with his character -- Obama, once he had the nomination secured in July, 2008, turned around and did exactly that which he swore he would not do: he not only voted against the filibuster of the bill containing telecom amnesty, but also voted in favor of enactment of the underlying bill. That bill, known as the FISA Amendments Act of 2008, was then signed into law by George W. Bush.[...]
Immediately upon enactment of the Bush/Obama-supported FISA Amendments Act, the ACLU filed a lawsuit seeking to enjoin its enforcement on the ground that the law's expanded warrantless eavesdropping powers violated the Fourth Amendment.
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But today, a three-judge appellate court dealt a serious blow to the Bush/Obama tactic for shielding government eavesdropping from judicial review (i.e., placing secret executive surveillance above and beyond the rule of law). The unanimous court ruled that the plaintiffs' fear that they will be subjected to this expanded warrantless eavesdropping is reasonable given the sweeping powers the law vests in the Executive, that these fears substantially impede their work, and that these impediments constitute actual harm sufficient to allow them to challenge the constitutionality of the FISA Amendments Act.
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It rejected the Bush/Obama claim that citizens must prove they have been targeted by an illegal presidential program before they have the right to ask a court to declare it illegal.
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It is, of course, possible that the Supreme Court can review and reverse this ruling, but the Second Circuit is a well-regarded court -- situated on the level immediately below the Supreme Court -- and this well-reasoned decision will have significant sway.
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