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Rights Group in Catch-22 of How to Prove It Was Targeted by Wiretapping Secret Program

NEW YORK and SAN FRANCISCO - August 30 - Last night the first brief was filed in the appeal in CCR v. Obama, a lawsuit brought by the Center for Constitutional Rights (CCR) against the Bush administration in 2006 to challenge the legality of the National Security Administration’s (NSA) warrantless wiretapping program. The suit originally sought an injunction ordering the government to end the program, and in response to this and other litigation, the government claimed to have shut down the program by 2007. In the remaining part of the case, CCR asked the court to order the government to destroy any records of surveillance of the plaintiffs—CCR attorneys and legal staff who feared that their phone calls and emails were subject to surveillance under the program.

The government argued that CCR did not have standing to sue because the Center lacked evidence that its staff and attorneys had actually been surveilled (and could not obtain or use such evidence in the court proceedings because such evidence would be a “state secret”). The lower court agreed, holding that, even though “plaintiffs appear to have established that their litigation activities have become more costly due to their concern about [possible surveillance under the NSA program],” plaintiffs could not sue without proof that they had actually been eavesdropped upon. That ruling is now under appeal to the Court of Appeals for the Ninth Circuit.

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