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PEN American Center and other leading human rights organisations file lawsuit challenging constitutionality of new surveillance law

(PEN/IFEX) - On 10 July 2008, PEN American Center joined the American Civil Liberties Union (ACLU), Human Rights Watch, Amnesty International and other leading international human rights organisations, journalists and attorneys in filing a lawsuit challenging the constitutionality of the newly-enacted FISA Amendments Act, a law that grants the Administration the power to carry out and expand the illegal eavesdropping activities it has engaged in secretly since 2001.

PEN, which believes its routine communications with writers and human rights activists overseas are vulnerable to monitoring under the programme, called the law "an unnecessary abandonment of constitutional protections prohibiting 'general warrants' and unreasonable searches." The writers' organisation insisted that the kind of dragnet surveillance the law allows not only threatens the ability of American writers, journalists and human rights advocates to carry out their international work, but also undermines the right of all American citizens to engage in private telephone and Internet conversations without fearing that the government is listening.

The FISA Amendments Act of 2008 overhauls and significantly weakens the Foreign Intelligence Surveillance Act (FISA), which was enacted in 1978 after revelations that the government had been spying on innocent Americans, including leading writers and cultural figures. FISA required the government to seek the approval of a secret court to conduct surveillance programmes in the United States.

In December 2005, "The New York Times" reported that the Bush administration had authorized a massive new surveillance program in the wake of the 11 September 2001 terrorist attacks that simply ignored FISA. Dramatic congressional testimony last year by former Deputy Attorney General James Comey revealed that the Administration repeatedly reauthorized the programme despite the fact that its own Justice Department had concluded that key aspects of the programme were illegal. More than 40 lawsuits have been filed by customers against telecommunications companies that participated in the programme.

By granting immunity to the telecommunications companies, the FISA Amendments Act effectively short-circuits these lawsuits, which many believed were the best means available to bring the scope of the illegal surveillance to light. The new law also authorizes major - and still secret - aspects of the programme, and will allow the government to conduct sweeping surveillance of communications, including the international communications of U.S. citizens and residents, without identifying specific targets and with limited FISA court review.

"Like all international human rights organizations, PEN conducts daily exchanges with a network of writers, journalists and human rights organisations and activists around the world," said Larry Siems, Director of Freedom to Write and International Programs at PEN American Center. "This includes regular exchanges with the families of writers and journalists in authoritarian countries whose free expression rights are being violated, often in the name of protecting national security. The knowledge that these exchanges could be monitored by the United States government undermines the trust and confidence necessary for us to gather crucial information and serve as credible and effective advocates on their behalf."

Siems stressed that PEN is concerned not only about its ability to carry out its work as a human rights organisation, but also about the impact the surveillance programme will have on its membership of professional writers, on American citizens and residents as a whole, and on the climate for freedom of expression in the United States. "What the FISA Amendments Act has done is take a secret government programme that was conceived and implemented outside the law and declare that the law doesn't matter; that those whose most basic rights have been violated under the programme don't matter; and that the American people, who have lost the security of knowing that their communications can only be monitored if the government secures a FISA court order, may never learn the extent of the programme and how it is being used."

"It is a terrible precedent for lawmaking, and it is sure to breed the kind of uncertainties about government conduct that can chill speech. The fact is, law-abiding Americans have no way of knowing whether their international communications are being monitored," Siems concluded.

"We are extremely proud to stand with the ACLU and our co-plaintiffs in challenging this badly-flawed law and this unconstitutional programme," said Francine Prose, president of PEN American Center. "PEN is an organisation that strives to defend writers and freedom of expression around the world, and one that has proudly counted among its international membership many writers who have been the target of illegal and abusive government surveillance programmes, including abusive programmes in the United States that the 1978 FISA law was meant to address. Those programmes, too, were justified in the name of national security. What we learned then, and must relearn now, is that it is possible to craft surveillance programs that do not trample the First and Fourth Amendments."

PEN American Center is the largest of the 145 centers of International PEN, the world's oldest human rights organisation and the oldest international literary organisation. The Freedom to Write Program of PEN American Center works to protect the freedom of the written word wherever it is imperiled. It defends writers and journalists from all over the world who are imprisoned, threatened, persecuted or attacked in the course of carrying out their profession. For more information on PEN's work, please visit

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