Tuesday, March 22, 2011

Lawsuit Challenging Warrantless Wiretapping Revived by Appeals Court!

I'm not sure what to say because I've become so used to only reporting bad news....but a semblance of justice was achieved yesterday! I speak of the lawsuit challenging the abominable American law that allows  eavesdropping on overseas communications of American citizens. Yes, that case is still alive. On Monday, a federal appeals court said the new rules regarding surveillance had put lawyers, journalists and human rights groups in a “lose-lose situation.”

In other words, the ACLU WON their lawsuit against the US government for unlawful spying on Americans. As David Dayen noted, "The lawsuit specifically challenges the constitutionality of the FISA Amendments Act of 2008, which de facto legalized ongoing warrantless spying on Americans who communicate with parties overseas if a link to terrorism on either end can be established. The Appeals Court basically restored the standing to sue to the plaintiffs. The decision by the 2nd U.S. Circuit Court of Appeals means the ACLU, and other rights groups involved in the suit, might get their day in court."

By now, I think most everyone has a working knowledge of the warrantless wiretapping program under the Bush Administration. Similarly, I think we all probably remember the promises made from candidate Obama about his THEN opposition to giving telecommunication companies immunity for their participation in Bush and company's crimes.

As we now all know, President Obama (and Attorney General Holder for that matter) has completely reversed himself, by not only refusing to prosecute or investigate the program and/or those that carried it out, but even expanding their defense of the program in some important key respects. But, before I get to some of that history, and how it relates to this decision, Wired Magazine has more:

A lower court had ruled the ACLU, Amnesty International, Global Fund for Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation magazine, PEN American Center, Service Employees International Union and other plaintiffs did not have standing to bring the case, because they could not demonstrate that they were subject to the eavesdropping.

The groups appealed, arguing that they often work with overseas dissidents who might be targets of the National Security Agency program. Instead of speaking with those people on the phone or through e-mails, the groups asserted that they have had to make expensive overseas trips in a bid to maintain attorney-client confidentiality.

The plaintiffs, some of them journalists, also claim the 2008 legislation chills their speech, and violates their Fourth Amendment privacy rights. Without ruling on the merits of the case, the appeals court on Monday agreed with the plaintiffs that they have ample reason to fear the surveillance program, and thus have legal standing to pursue their claim.

This is VERY important because at least in this case, the judge didn't buy the government's argument that citizens needed to somehow (impossible to do in fact) PROVE they had specifically been wiretapped and that they specifically suffered damage in order to have the right to sue (i.e. "standing"). Of course, how does one do that if when disclosure of who was targeted and why would be a threat to national security, right? You get the idea...its a kind of circular logic that ensures two things: the government gets away with their crimes and the people suffer the consequences.

This leads of course to the other key argument we know is sure to be coming from the government: the state secrets privilege. Now that this judge has at least ruled that those in the lawsuit have a right to sue, even without providing direct evidence of being wiretapped, the question now will become whether plaintiff's can get passed the what has become a radical State Secrets interpretation advocated by both the Bush and Obama Administration's.

Simply put, the State Secrets privilege was once meant for, well, ACTUAL state secrets. No longer. Today, ANYTIME ANYTHING might come out in court that makes the government uncomfortable, like the rights of tortured prisoners that have never had access to a trial, bang, out comes the argument that such knowledge, if made public, would threaten our national security. How convenient, no?

If the Administration continues to be so successful in broadening the scope of this "privilege", the Executive Branch will become even more powerful and unaccountable than it already is - serving to validate and reinforce Vice President Cheney's "unitary executive" theory that gained such traction during the Bush years. 

It was just last year that A federal judge (Vaughn Walker) ruled that "the National Security Agency's program of surveillance without warrants was illegal, rejecting the Obama administration's effort to keep shrouded in secrecy one of the most disputed counter terrorism policies of former President George W. Bush." 

Judge Vaughn Walker ruled that the government had violated a 1978 federal statute requiring court approval for domestic surveillance. In other words, Judge Walker blew the State Secrets argument out of the water. What stopped that case in its tracks you ask? Retroactive immunity for the telecoms complicit in these crimes of course. As you can see, the government has covered all its bases with a kind of rubric's cube of legal hurdles. The good news is we at least cleared one of them yesterday.

Glenn Greenwald has more on the significance of the ruling:

This may sound like a legalistic development but its significance extends far beyond that. Unlike the bastardized Bush/Obama "state secrets" weapon for avoiding judicial review, "standing" is actually a legitimate and important constitutional restriction on a court's jurisdiction.

But what the Bush DOJ and then the Obama DOJ have done is manipulate that important "standing" limitation beyond all recognition into a weapon of full-scale presidential immunity.   If one were to accept their tactic, a President need only break the law in total secrecy and prevent anyone from finding out what exactly he did and to whom he did it.  With that secrecy in place, the DOJ can then tout that secrecy as a means of preventing any judicial challenges to the President's conduct -- which is another way of saying that the President has placed his conduct outside of the rule of law (because we did it in secret, everyone is unable to sue over it).  Obviously, if one can break laws but then block courts from adjudicating allegations of lawbreaking, then one is -- by definition -- free to break the law.  That has been the case thus far with the Bush administration thanks to the warped doctrines it pioneered and the Obama DOJ then swallowed whole.  

This danger is particularly acute in the post-9/11 world where so much of what the Executive branch does of any significance -- I'd say most of what it does -- takes place behind a wall of secrecy.  To allow Presidents to escape all legal challenges on "standing" grounds merely because they managed to conceal the identity of the victims of their lawbreaking would be, in essence, to have laws that apply to Presidents only in theory but not in reality.

The ACLU's Deputy Legal Director, Jameel Jaffer responded to the decision: “The government’s surveillance practices should not be immune from judicial review, and this decision ensures that they won’t be. The law we’ve challenged permits the government to conduct dragnet surveillance of Americans’ international communications, and it has none of the safeguards that the Constitution requires. Now that the appeals court has recognized that our clients have the right to challenge the law, we look forward to pressing that challenge in the trial court.”

Some history is in order here. Let's not forget that a government report disclosed that President Bush authorized secret surveillance activities that went WAY beyond the previously disclosed NSA program – raising the prospect of additional unlawful conduct. Supporting that conclusion was the account of a former N.S.A. analyst who, in a series of interviews, described being trained in 2005 for a program in which the agency routinely examined large volumes of Americans’ e-mail messages without court warrants. Two intelligence officials confirmed that the program was still in operation.

This report, mandated by Congress in 2009 and produced by the inspectors general of five federal agencies, also found that other intelligence tools used in assessing security threats posed by terrorists provided more timely and detailed information.

In fact, NOT ONE instance could be cited that demonstrated the wiretapping program prevented any attack of any kind, ever. Nor did it lead to the capture of any terrorists. In light of these facts, one would think that the Obama Administration would come down somewhere at least close to the position that candidate Obama espoused on the campaign trail. Sadly, the opposite has been true.

In fact, all we have to show as a nation since this program was exposed is additional protections (and retroactive immunity) to telecom companies for sharing our private information with the government, and more legal cover for the Executive Branch to carry out similar efforts in the future. To date, giving telecom companies immunity has served the dual purpose of protecting the politicians from having the telecom companies share what they know about THEIR crimes! Add to that the hurdles of "standing" and "states secrets", and the enormous challenge to achieve justice becomes apparent.

As for the President, I will go back to something I wrote about his privacy flip flops in the past

"It’s as if we're watching a debate between the eloquent, pro-civil liberties "Candidate Obama" and the just as eloquent, anti-constitutional authoritarian, President Obama.

Senator Obama branded the Patriot Act "shoddy and dangerous" and pledged to end it in 2003. In 2005, he pledged to filibuster a Bush-sponsored bill that included several of these exact components recently extended, calling them "just plain wrong" in a Senate speech. He argued:

"Government has decided to go on a fishing expedition
through every personal record or private document -- through library books they've read and phone calls they've made...We don't have to settle for a Patriot Act that sacrifices our liberties or our safety -- we can have one that secures both."

It goes without saying, Obama reneged on those pledges.

With that, let me conclude with Glenn Greenwald's thoughts on what to take away from yesterday's ruling:

Today's ruling puts at least some brakes -- for now -- on that license of lawlessnessIt 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.  Instead, a plaintiff's reasonable fear that their rights are being violated due to enactment of an allegedly unconstitutional law  -- combined with actual harm suffered as a result of that fear -- suffices to allow them to challenge the legality of those actions.  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.  At the very least, this is an important ruling in eroding what is easily one of the worst political problems plaguing America in the post-9/11 world: the ease with which Presidents and their underlings can insulate their secret actions from the rule of law.  

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