Bringing an End to Illegal Wiretaps

By Onnesha Roychoudhuri, AlterNet. Posted February 17, 2006.

Despite the heated controversy over warrantless wiretaps, recent Senate Judiciary Committee hearings did little to bring the Bush administration to account. Attorney General Alberto Gonzales simply repeated the same tired lines. According to Gonzales, Congress' Authorization to Use Military Force (AUMF) in Afghanistan allows the president to conduct domestic wiretaps. And, the argument goes, even if that's not true, President Bush's executive power enables him to do whatever he deems is necessary in the war on terror.

The ineffectual nature of the hearings has struck a chord with concerned Americans. If Congress can't hold the administration to account, who can? Luckily, there are groups that are working to pick up the slack. The Center for Constitutional Rights (CCR) and the American Civil Liberties Union (ACLU) have both filed complaints against the administration and security agencies, charging that the president's warrantless wiretaps are a violation of the Constitution. The Electronic Frontiers Foundation (EFF) recently joined the cause, filing a class action suit against AT&T. EFF charges that the monolithic communications company has collaborated with the National Security Agency (NSA) wiretap program -- providing the agency with millions of its customers phone and email records.

Because the the wiretap program is secret, it's difficult to prove that anyone has been targeted by the program. This secrecy makes it difficult to bring legal charges against the administration. Nevertheless, the nature of the program has struck many lawyers as an obvious violation of our civil liberties. Shayana Kadidal, one of the CCR lawyers bringing the suit against the administration, told AlterNet that there is simply no question that the administration has violated the law. Kadidal spoke with AlterNet about the specifics of CCR's case and why the wiretap program endangers not only our civil liberties but our national security.

Why did CCR decide to bring legal action against the president and security agencies?

It's an interesting case. Usually, when you start a case, you know an awful lot about the facts, and you're a little uncertain as to where the law is going to go. Here, it's exactly the opposite. It's clear from the descriptions given by administration officials that the program they're conducting is completely illegal. Congress has made any electronic surveillance outside of the wiretap act and the Foreign Intelligence Surveillance Act (FISA) a felony. Really, the only mystery in this case is why it was done and whether or not our clients, people we've been communicating with, or even our lawyers, have been direct targets of the program.

Who are the parties, in addition to the president, that you are bringing these charges against?

The agencies that the media have reported are ones that NSA routinely shared information with -- Defense Intelligence Agency (DIA), Department of Homeland Security (DHS), Federal Bureau of Investigation (FBI), Central Intelligence Agency (CIA) and John Negroponte, who sits on top of the whole system and certainly sees a lot of the information and reports to the president about it. It's a felony to use or disclose any information knowing that it has been garnered outside of either FISA or the wiretap act.

What is your specific legal claim against those involved in the warrantless wiretaps?

Essentially, there are two claims. One is that the program violates the statutes that Congress has provided -- a subset of this is that it violates the separation of powers, and that the president is acting in a way that ignores the role that has been assigned to Congress and courts in deciding on individual wiretaps under the statutes. The second is the Fourth Amendment. These are essentially unreasonable searches because they're carried out without any judicial oversight.

Both the CCR and the American Civil Liberties Union's (ACLU) complaints cite violation of the First Amendment. Can you explain how this comes into play?

Our claim is that we are inhibited from forming attorney-client relationships, from doing our jobs as attorneys, and from carrying out the political role that our nonprofit litigation occupies in our political system. This surveillance program is hanging over our heads, our clients' heads, the witnesses we communicate with, and the other human rights' lawyers overseas that we communicate with. Under the First Amendment we have a significant role to play in the political system as part of our freedom of expression to be able to bring these kinds of cases. It is our First Amendment right to do political advocacy through litigation, and the National Security Agency's (NSA) program interferes with our rights as lawyers to do these things.

Onnesha Roychoudhuri is an editorial fellow at AlterNet.

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