Bringing an End to Illegal Wiretaps
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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.
How do you expect that the defense will come at you?
They'll probably say that we don't know that our conversations were eavesdropped upon. That's basically accurate. Nobody knows that their conversations were eavesdropped upon because it's a secret surveillance program. Our complaint lays out that we represent a lot of individuals who are targets of the governments' war on terror in terms of its detention and interrogation policies. For instance, we represent Guantanamo detainees, people who were swept up in immigration sweeps right after 9/11 and deported after being abused in custody. All of these people are people the government suspects of some sort of linkage to al Qaida. We believe this means that our communications with them, and witnesses in their cases, are exactly the kind of communications that the government has said it's going to be listening in on under this program.
What are you seeking as relief?
Our complaint asks for an end to the program, disclosure of which conversations of ours have been eavesdropped upon, turning over that information to us, and then destruction of those records in the hands of both the NSA and all the other agencies that we believe they've shared the information with.
Do you think this is a strong case?
I feel very confident about the fact that we have standing in this case. As a lawyer here, I know that the existence of this sort of surveillance program makes it difficult to do my work. I think it will be very easy to convince a court of that. At the end of the day, it does require a certain amount of courage for a court to stick its nose into a program that the administration is so vociferously defending as essential to national security even when the facts appear as strong as those we have right now. It's going to require a courageous judge.
You think that the biggest challenge is going to be for courts to be courageous?
Yes, to basically do what the law says. It's obviously a challenge for the administration; I hope it's not going to be a challenge for the federal court as well. But, in our post-9/11 docket, we've had four years of very difficult litigation over a number of things that we would have characterized as the most basic due process rights. I don't expect this to be any different.
Do you think that the AUMF authorizes the wiretaps?
Not only do I not believe it, I don't think the administration officials believe it either. In the first press briefing on the program, in December of 2005, the attorney general, Alberto Gonzales, said the administration thought about asking Congress for approval of changes to the FISA statute to make this kind of program legal, but they didn't because they thought Congress wouldn't grant it. It's completely disingenuous to say that Congress implicitly approved this program while also saying that they thought, if asked for explicit approval, Congress would have rejected it.
What is the administration's justification for the wiretaps aside from the AUMF?
The one really amazing one the president started implied in the SOTU was that, prior to the attacks of Sept. 11th, our government failed to connect the dots because we didn't have these wiretaps. He was referring to two guys who were in San Diego -- Khalid al Midhar and Nawaf al-Hamzi. They were in the United States, and the NSA knew this in 2000 because they had a legal wiretap on an al Qaida safe house in Yemen. But Gen. Hayden, who was head of the NSA at that time, said that they never bothered to provide that information to the FBI or to other law enforcement agencies because they didn't realize its significance. It was a failure to communicate between intelligence and law enforcement agencies that caused them to not catch the San Diego hijackers -- not that wiretapping laws were too strict. It's so appalling that Bush and some of the other administration officials have made that the centerpiece of their defense because it's absurd.
Are there precedents for this kind of wiretapping?
One of the things the administration says over and over again is that there are historical precedents for presidents doing this sort of wiretapping. But all the cases they cite are before FISA was passed in October 1978. FISA was intended to ensure that Congress would have a word in any type of wiretapping that took place. That was in reaction to the excesses of the Nixon administration. This was all documented in the Church Committee reports on domestic surveillance. One of the concerns the Church Committee had was that wiretapping was going to be used against political opponents of the administration. That's a real concern. We think to some extent that we fit into that category because our post 9/11 cases are proving very embarrassing to the government. Individuals they hilighted as being big figures in the war on terror turned out to be nobodies. But beyond that, there are law enforcement policy reasons why one would hope that a judge always has a role in checking off on wiretap orders.
Why is legal oversight of wiretapping so important?
Judicial oversight ensures that law enforcement is going to focus its attentions on real threats, so judicial oversight makes law enforcement more efficient. The New York Times story that came out the day we filed our case is a great example of that. It documents how the NSA dumps huge loads of phone numbers and leads on the FBI. Those agents would have to go investigate a thousand phone numbers, and none of them have any link to anything. Yet they have to spend a huge amount of resources on it. Historically, this is actually typical. Even the Church Committee said that there was a lot of waste and duplication when intelligence was gathered without any supervision from a court.
Do you believe that Congress intended to authorize things like wiretapping through the Authorization to Use Military Force (AUMF)?
Congress tweaked the FISA in December of 2001, a few months after the AUMF was passed. Before, you had to go to a court within 24 hours of putting a wiretap order in place. They extended it to 72 hours. If they thought they had given the president carte blanche to carry out all sorts of domestic wiretapping just because they had approved the use of military force in Afghanistan, then they never would have bothered doing that. James Risen noted in his new book State of War that 10 to 20 percent of all FISA wiretap orders now are based on evidence that's been collected illegally through the NSA program. Any criminal prosecutions that are based on the evidence that comes out of this are going to be tainted by the illegality of this NSA program. This is going to be huge blow to the law enforcement efforts against international drug dealers and whoever else is involved in all those contaminated wiretap orders. Those convictions could be overturned if it's found that they're based on the fruits of the illegal NSA program.
Why do you think the administration went around FISA?
That's one of big mysteries. The basic justifications that they have made -- the thing about speed and the idea that Congress authorized it -- are clearly disingenuous. This administration, in general, is interested in reversing what Vice President Cheney has referred to as the erosions of presidential power that occurred in the Watergate era. The administration has a lot of ideologically minded people who believe that the presidency is not strong enough as an institution, and that it needs to have more power than Congress and the courts. This program is an attempt to say, We don't need Congressional approval, and we don't need to go to a judge every time we want to listen in on someone's conversation.
It is obvious why organizations like yours, the ACLU, are pursuing legal actions. But, some Americans might ask what motivation the administration would have in spying on them. Why is this an important issue for all Americans?
Americans tend to have this confidence that there is something about our political culture that prevents us from descending into the kind of state that East Germany was before the wall fell. The reality is that there's only the law preventing us from turning into that kind of total surveillance society. It's not just listening in one or two of your calls. You have to think of what it was like for those people in East Germany -- a country of 16 million people. The goal of the government was to have a file on every single citizen of East Germany. They had 90,000 full-time employees in a country of 16 million. 10,000 people employed just to transcribe telephone calls that were being eavesdropped upon.
There's also this ominous sort of thing looming out there, which is that a lot of seemingly lawful wiretap orders under the wiretap act or FISA may be contaminated by information that came from this NSA program. This may lead to a huge number of overturned convictions. That's something that ought to concern people regardless of who they voted for.
Onnesha Roychoudhuri is an editorial fellow at AlterNet.