Judge Orders Halt to Warrantless Surveillance

August 18, 2006

From AOL News:

Noting “there are no hereditary Kings in America and no powers not created by the Constitution,” a federal judge ruled Thursday that President Bush had exceeded his authority when he allowed the National Security Agency to eavesdrop on Americans without a warrant.

U.S. District Judge Anna Diggs Taylor in Detroit said the surveillance by the NSA violates the rights to free speech and privacy, as well as the separation of powers enshrined in the Constitution.  

The Bush administration said the program is a vital tool in the fight against terrorism and said it would seek a reversal by the 6th U.S. Circuit Court of Appeals in Cincinnati.  

White House press secretary Tony Snow said the Bush administration “couldn’t disagree more with this ruling.” He said the program carefully targets communications of suspected terrorists and “has helped stop terrorist attacks and saved American lives.”  

Taylor ordered an immediate halt to the program, but the government said it would ask for a stay of that order pending appeal. The American Civil Liberties Union, which brought the suit, said it would oppose a stay but agreed to delay enforcement of the injunction until Taylor hears arguments Sept. 7.  

The ACLU filed the lawsuit in January on behalf of journalists, scholars and lawyers who say the program has made it difficult for them to do their jobs. They believe many of their overseas contacts are likely targets of the program, which monitors phone calls and e-mails between people in the U.S. and people in other countries when a link to terrorism is suspected.  

The ACLU says the 1978 Foreign Intelligence Surveillance Act, which set up a secret court to grant warrants for such surveillance, gave the government enough tools to monitor suspected terrorists.  

The government argued that the program is well within the president’s authority but said proving that would require revealing state secrets.  

The ACLU said the state-secrets argument was irrelevant because the Bush administration already had publicly revealed enough information about the program for Taylor to rule.  

Taylor agreed, writing in her 43-page opinion that “Plaintiffs need no additional facts” to establish their claims.  

Taylor, a Carter appointee, said the government appeared to argue that the president has the “inherent power” to violate laws of Congress and the First and Fourth amendments to the Constitution.  

“We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution,” Taylor wrote. “There are no hereditary Kings in America and no powers not created by the Constitution. So all ‘inherent powers’ must derive from that Constitution.”  

The Justice Department said the program “is lawful and protects civil liberties.”  

ACLU executive director Anthony Romero called Taylor’s opinion “another nail in the coffin in the Bush administration’s legal strategy in the war on terror.”  

“At its core, today’s ruling addresses the abuse of presidential power and reaffirms the system of checks and balances that’s necessary to our democracy,” he told reporters.  

One of the plaintiffs in the case, Detroit immigration lawyer Noel Saleh, said the NSA program had made it difficult to represent his clients, some of whom the government accuses of terrorist connections.  

Many of those cases require him to speak to witnesses overseas. “There’s no way I or my clients would feel secure” about the privacy of those phone conversations, Saleh said.  

Saleh, a leader in Michigan’s large Arab-American community, said the program affected not only lawyers, scholars and journalists whose professional activities require them to communicate overseas, but anyone with relatives abroad.  

For example, Saleh said there were “constant phone calls between the United States and Lebanon” in recent weeks, as people here sought news of their families amid the violence in the Middle East. The NSA was likely listening in on many of those calls, he said.  

“People have the right to be concerned about their family, to check on the welfare of their family and not be spied on by the government,” he said.  

In Washington, Republicans expressed hope that the decision would be overturned, while many Democrats praised the ruling.  

“It is disappointing that a judge would take it upon herself to disarm America during a time of war,” Rep. Pete Hoekstra, R-Mich., chairman of the House Intelligence Committee, said in a statement.  

West Virginia Sen. Jay Rockefeller, the top Democrat on the Senate Intelligence Committee, said the decision shows the executive branch needs more external reviews.  

“The administration is wrongly convinced that it can run the country without Congress or oversight. This is their tragic failure, and the courts understand it,” Rockefeller said. “The nation’s security is serious business – and particularly during such a dangerous time – it requires constant oversight, input and understanding from the Congress, the courts, and the American people.”  

Both Hoekstra and Rockefeller have been briefed extensively on the program’s details.  

Sen. Arlen Specter, R-Pa., the Senate Judiciary Committee chairman, is championing a compromise that would allow Bush to submit the surveillance program to the Foreign Intelligence Surveillance Court for a one-time test of its constitutionality. Civil liberties groups say such a review would be a sham.  

Attorney General Alberto Gonzales said the administration believes such legislation is not necessary to make the program legal but has committed to working with Specter on it. He said it may address some of the concerns raised in the judge’s ruling.  

But Taylor’s opinion was so sweeping that congressional approval of the program would not address her concerns, said Richard Pildes, a professor at New York University School of Law.  

“The debate about this program has overwhelmingly been about whether Congress has to authorize it for it to be constitutional. But beyond holding that Congress does have to do so, this judge has suggested it would violate the Constitution even if Congress authorized it,” Pildes said.  

“Until Congress actually addresses these questions, I would expect most appellate courts to be extremely reluctant to address many of the questions this judge was willing to weigh in on.”  

Taylor dismissed one claim in the ACLU’s lawsuit that dealt with data-mining of phone records. The lawsuit alleged that the NSA “uses artificial intelligence aids to search for keywords and analyze patterns in millions of communications at any given time.”  

Taylor said not enough had been publicly revealed about that program to support the claim and further litigation would jeopardize state secrets.  

Multiple lawsuits have been filed related to data-mining against phone companies, accusing them of improperly turning over records to the NSA.  

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Bush Administration Invoking State Secrets More and More

June 4, 2006

From The NY Times:

Facing a wave of litigation challenging its eavesdropping at home and its handling of terror suspects abroad, the Bush administration is increasingly turning to a legal tactic that swiftly torpedoes most lawsuits: the state secrets privilege.

In recent weeks alone, officials have used the privilege to win the dismissal of a lawsuit filed by a German man who was abducted and held in Afghanistan for five months and to ask the courts to throw out three legal challenges to the National Security Agency's domestic surveillance program.

But civil liberties groups and some scholars say the privilege claim, in which the government says any discussion of a lawsuit's accusations would endanger national security, has short-circuited judicial scrutiny and public debate of some central controversies of the post-9/11 era.

The privilege has been asserted by the Justice Department more frequently under President Bush than under any of his predecessors — in 19 cases, the same number as during the entire eight-year presidency of Ronald Reagan, the previous record holder, according to a count by William G. Weaver, a political scientist at the University of Texas at El Paso.

While the privilege, defined by a 1953 Supreme Court ruling, was once used to shield sensitive documents or witnesses from disclosure, it is now often used to try to snuff out lawsuits at their inception, Mr. Weaver and other legal specialists say.

"This is a very powerful weapon for the executive branch," said Mr. Weaver, who has a law degree and is a co-author of one of the few scholarly articles examining the privilege. "Once it's asserted, in almost every instance it stops the case cold."

Robert M. Chesney, a law professor at Wake Forest University who is studying the recent use of the privilege, said the administration's legal strategy "raises profound legal and policy questions that will be the subject of intense debate for the foreseeable future."

Some members of Congress also have doubts about the way the privilege has been used. A bill approved by the House Government Reform Committee would limit its use in blocking whistle-blowers' lawsuits.

"If the very people you're suing are the ones who get to use the state secrets privilege, it's a stacked deck," said Representative Christopher Shays, Republican of Connecticut, who proposed the measure and has campaigned against excessive government secrecy.

Yet courts have almost always deferred to the secrecy claims; Mr. Weaver said he believed that the last unsuccessful assertion of the privilege was in 1993. Steven Aftergood, an expert on government secrecy at the Federation of American Scientists, said, "It's a sign of how potent the national security mantra has become."

Under Mr. Bush, the secrets privilege has been used to block a lawsuit by a translator at the Federal Bureau of Investigation, Sibel Edmonds, who was fired after accusing colleagues of security breaches; to stop a discrimination lawsuit filed by Jeffrey Sterling, a Farsi-speaking, African-American officer at the Central Intelligence Agency; and to derail a patent claim involving a coupler for fiber-optic cable, evidently to guard technical details of government eavesdropping.

Such cases can make for oddities. Mark S. Zaid, who has represented Ms. Edmonds, Mr. Sterling and other clients in privilege cases, said he had seen his legal briefs classified by the government and had been barred from contacting a client because his phone line was not secure.

"In most state secrets cases, the plaintiffs' lawyers don't know what the alleged secrets are," Mr. Zaid said.

More recently the privilege has been wielded against lawsuits challenging broader policies, including the three lawsuits attacking the National Security Agency's eavesdropping program — one against AT&T by the Electronic Frontier Foundation in San Francisco and two against the federal government by the American Civil Liberties Union in Michigan and the Center for Constitutional Rights in New York.

In a filing in the New York case, John D. Negroponte, the director of national intelligence, wrote that allowing the case to proceed would "cause exceptionally grave damage to the national security of the United States" because it "would enable adversaries of the United States to avoid detection." Mr. Negroponte said he was providing more detail in classified filings.

Those cases are still pending. Two lawsuits challenging the government's practice of rendition, in which terror suspects are seized and delivered to detention centers overseas, were dismissed after the government raised the secrets privilege.

One plaintiff, Maher Arar, a Syrian-born Canadian, was detained while changing planes in New York and was taken to Syria, where he has said he was held in a tiny cell and beaten with electrical cables. The other, Khaled el-Masri, a German of Kuwaiti origin, was seized in Macedonia and taken to Afghanistan, where he has said he was beaten and injected with drugs before being released in Albania.

The United States never made public any evidence linking either man to terrorism, and both cases are widely viewed as mistakes. Mr. Arar's lawsuit was dismissed in February on separate but similar grounds from the secrets privilege, a decision he is appealing. A federal judge in Virginia dismissed Mr. Masri's lawsuit on May 18, accepting the government's secrets claim.

One frustration of the plaintiffs in such cases is that so much information about the ostensible state secrets is already public. Mr. Arar's case has been examined in months of public hearings by a Canadian government commission, and Mr. Masri's story has been confirmed by American and German officials and blamed on a mix-up of similar names. The N.S.A. program has been described and defended in numerous public statements by Mr. Bush and other top officials and in a 42-page Justice Department legal analysis.

In the A.C.L.U. lawsuit charging that the security agency's eavesdropping is illegal, Ann Beeson, the group's associate legal director, acknowledged that some facts might need to remain secret. "But you don't need those facts to hear this case," she said. "All the facts needed to try this case are already public."

Brian Roehrkasse, a Justice Department spokesman, said he could not discuss any specific case. But he said the state secrets privilege "is well-established in federal law and has been asserted many times in our nation's history to protect our nation's secrets."

Other defenders of the administration's increasing use of the privilege say it merely reflects proliferating lawsuits.

In all of the N.S.A. cases, for instance, "it's the same secret they're trying to protect," said H. Bryan Cunningham, a Denver lawyer who served as a legal adviser to the National Security Council under Mr. Bush. Mr. Cunningham said that under well-established precedent, judges must defer to the executive branch in deciding what secrets must be protected.

But critics of the use of the privilege point out that officials sometimes exaggerate the sensitivities at risk. In fact, documents from the 1953 case that defined the modern privilege, United States v. Reynolds, have been declassified in recent years and suggest that Air Force officials misled the court.

An accident report on a B-29 bomber crash in 1948 was withheld because the Air Force said it included technical details about sensitive intelligence equipment and missions, but it turned out to contain no such information, said Wilson M. Brown III, a lawyer in Philadelphia who represented survivors of those who died in the crash in recent litigation.

"The facts the Supreme Court was relying on in Reynolds were false," Mr. Brown said in an interview. "It shows that if the government is not truthful, plaintiffs will lose and there's very little chance to straighten it out."