Spying Law Challenged

Image has not been found. URL: /wp-content/uploads/2008/09/bush-podium1.jpgThe Foreign Intelligence Surveillance Act renewal is considered a major legislative victory for President George W. Bush (WDCpix)

With the Congressional battle over revising the Foreign Intelligence Surveillance Act ending in a victory for President George W. Bush last week, a coalition of civil libertarians and journalists has decided to take the fight to the courts.

Late last week, the American Civil Liberties Union, Human Rights Watch, Amnesty International, the Service Employees International Union and The Nation magazine filed a lawsuit in U.S. District Court for the Southern District of New York challenging the constitutionality of the FISA Amendments Act of 2008, which Bush signed into law on Thursday. In Amnesty v. McConnell, the civil libertarians claim that the new law’s allowance of what they call “sweeping and virtually unregulated authority to monitor the international communications” of U.S. citizens and residents is a violation of the 4th Amendment’s protections against unreasonable searches and seizures.

Illustration by: Matt Mahurin

Separately, the ACLU requested that the Foreign Intelligence Surveillance Court, known as the FISA Court — the secret, 30-year old body that adjudicates domestic-surveillance warrants in intelligence cases — make public how the government decides whom it can target under the new law. The ACLU also wants to know what the government does with surveillance information it collects but deems irrelevant to a specific case.

Technologically, when doing surveillance, the government frequently sweeps up information about individuals unrelated to a particular target, and must establish procedures for getting rid of that information. This process, known as “minimization,” is among the most alarming to civil-liberties groups, but the government has not explained what the minimization process involves under the new law.

The civil-liberties coalition is “arguing that U.S. citizens and persons have a reasonable expect of privacy in their communications,” said Jameel Jaffer, director of the ACLU’s National Security Project and counsel to the plaintiffs in Amnesty v. McConnell. “This law gives the government unfettered to access those communications, which we believe is unconstitutional.”

Under the FISA Amendments Act, to conduct surveillance involving a U.S.-based person, the government does not need to specify that it is targeting a specific individual. Nor does it need to specify to the FISA Court that the surveillance target is actually related to terrorism, though the threat of terrorism was the administration’s stated reason for amending the 30-year old law — and also for violating its terms for five years under the so-called “Terrorist Surveillance Program.”

Now, the government can receive a generalized, year-long surveillance warrant from the FISA Court if it can show only that its surveillance methods are “reasonably” appropriate for acquiring “foreign intelligence information.” Critics say that standard is unconstitutionally broad.

Katrina vanden Heuvel, editor of The Nation, said that the ability of the government to listen in without a specified warrant on communications it deems relevant to cases involving “foreign intelligence information” poses a threat to all journalists. “This law threatens their ability to gather critical information.” vanden Heuvel said. “It also undermines the right of all U.S. citizens to engage in private telephone and Internet conversations without fearing that the government is listening.”

Some experts believe that the coalition’s legal challenge will be undone by the inherent difficulty of proving that they have suffered specific harm as the result of government surveillance activities under the law. The government does not voluntarily disclose who it spies on under the FISA Amendments Act, impairing litigants’ ability to show that they have, in fact, been placed under surveillance. Successful legal challenges rarely occur if the challenger cannot prove he or she has been actually harmed by a given law, a legal doctrine known as “standing.”

“I think most courts would think this is not ripe yet,” said Robert Weisberg, a professor at Stanford Law School.”It’s a complicated statute, and its legality may turn on the way it’s implemented. There’s a good chance a court would say, ‘Sorry, too soon.’”

Jaffer said he expects precisely that contention from the government. “I’m sure the government will argue, as it has in every one of these [surveillance] cases, that we don’t have standing, but think we do,” Jaffer said. “Our clients rely on the confidentiality of their communications on a daily basis. Human Rights Watch and Amnesty couldn’t do their work unless they [offered their contacts] confidentiality.”

Weisberg said he “conceded the circularity” of the government’s argument, but added that it might not matter in the case. “It’s a Catch-22,” he said, “but the government has benefited from Catch-22s in the past.”

Whatever the case’s fortunes, legal challenges are necessary to determine what the scope of the law actually is in practice, said Martin Lederman, a professor at Georgetown University Law School. “As with other historically important Fourth Amendment cases, the courts will be required to translate traditional norms and expectations of privacy to new forms of communications and new governmental surveillance capabilities,” said Lederman, who served in the Justice Dept’s Office of Legal Counsel from 1999 to 2002. “How the cases will come out probably depends on how many foreign-to-domestic communications are subject to surveillance, and on just what the [National Security Agency] is allowed to do with information about U.S. persons under this law — factual questions that are, for now, obscured in secrecy.”

The additional challenge filed by the ACLU in the FISA Court may introduce new facts into the public debate.

In its filing to the FISA Court, the ACLU contends that the new law “does not place reasonable limits on the government’s retention, analysis and dissemination of U.S. communications and information that relates to U.S. citizens and residents.” It asks the court to disclose the government’s so-called minimization procedures and to allow the ACLU to attend court hearings when the government requests surveillance under the new law. And it asks the court itself to issue “public versions of its own legal opinions” about the validity of the government’s minimization procedures.

Minimization is a key issue of concern for many civil libertarians. Julian Sanchez, a Washington journalist who focuses on the nexis of privacy, security and technology, noted a 2003 case, U.S. v. Sattar, in which tens of thousands of communications said by the government to be minimized ended up appearing in court. “[T]hough these communications were ‘minimized,’ when faced with the legal duty to cough up what they had, the FBI was still able to pull up the full records,” Sanchez blogged today. “Just because a communication has been ‘minimized’ doesn’t mean it’s not being kept.”

Jaffer said the filing in the FISA Court represented a strategy to get the court itself to rule on the constitutionality of the new FISA law. “It can’t view these [minimization] procedures in a vacuum,” he said.

If the coalition loses in court, civil libertarians upset by the FISA Amendments Act of 2008 might not have another chance to reign in blanket government surveillance for at least the remainder of the Congressional session, and possibly longer. Both presidential candidates favored the act, and few presidents voluntarily relinquish new executive powers granted them by Congress.

“Congress can always revisit the legislation” Jaffer said, “but I think a lot of people were hoping that a shift in Congress toward the Democrats would have meant a Congress that was more respective of individual rights and the Constitution. But it turns out this Congress not only essentially endorsed the warrantless wiretapping program, but gave the executive branch additional powers as well. It’s depressing to see both the Democrats and the Republicans throw their hands up on this issue and give the executive branch all powers asked for.

“That really does leave the courts” as a remedy, Jaffer continued. “And that is where we are now.”