FISA: And Now We Sue
One hour after President Bush signed into law an unconstitutional domestic wiretapping bill, the ACLU hit the courts with a landmark lawsuit challenging it.
We like how ACLU President Anthony D. Romero put it – “Cowed by the Bush administration’s pre-election scare tactics, the Senate passed freedom-stealing FISA legislation undermining your Fourth Amendment rights. This is not a “compromise,” as some in Congress would have us believe. The only thing they compromised is your freedom.”
So. If Congress and the President aren’t willing to stand up for the Constitution, we are. We’ll need your help. These links below will help you get up to speed.
Watch Jameel Jaffer, director of the ACLU National Security Project, explain our FISA lawsuit.
Read Glenn Greenwald’s take on our action, and listen to his podcast with Jameel.
Download a copy of the complaint, Amnesty et. al. v. McConnell. (pdf)
Download a copy of our motion to the Foreign Intelligence Surveillance Court. (pdf)
— Pam Noles, Friday July 11, 2008 Comment
House Members to Bush: No Immunity for Lawbreaking Phone Companies
After weeks of high drama on Capitol Hill, the House of Representatives rejected an attempt to give telecommunications companies a free pass for their role in spying on Americans. The House voted 213 to 197 to reject the Bush administration’s call for retroactive immunity for the companies from lawsuits over their legality.
The ACLU and other privacy groups have gone to court to learn whether the president’s secret wiretapping program violated the Constitution and millions of Americans’ rights.
The White House had pressured House members to rubber-stamp a Senate bill granting immunity and shredding other protections against rampant spying. Under U.S. law the government must obtain warrants from a surveillance court that reviews the evidence in secret.
The Foreign Intelligence Surveillance Court has granted nearly every request it reviewed. Yet the president and surrogates including Director of National Intelligence Mike McConnell have tried to undermine even that modest judicial oversight.
California ACLU members have watched this vote closely and urged their House members to reject the president’s power grab. The ACLU’s California affiliates sued AT&T and Verizon in 2006 on behalf of 17 individual plaintiffs and more than 100,000 ACLU members statewide for violating customer privacy and the Constitution by giving the U.S. government access to call data without a warrant.
— Michael Soller, Tuesday March 18, 2008 Comment
Senate Stinker: OKs Bush Wiretap Plan, Lets Telecoms Off the Hook for Role in Spying
The U.S. Senate has caved in to Bush Administration pressure to authorize wiretapping Americans’ phone calls without warrants and to give telecommunications companies immunity from lawsuits over their role in spying.
Senate voted 68-29 for legislation amending and, in the end, gutting the Foreign Intelligence Surveillance Act (FISA). The bill now goes to the House of Representatives, which passed a bill that contains no immunity and stricter wiretapping protections. A final bill is due on Saturday, February 16, the expiration date of last year’s disastrous Protect America Act.
The ACLU and civil liberties groups have filed more than 40 lawsuits nationwide. The ACLU/SC sued AT&T and Verizon in 2006 on behalf of 17 individual plaintiffs and more than 100,000 ACLU members statewide for violating customer privacy and the Constitution by giving the U.S. government access to call data without a warrant.
“If Congress and the telecoms collude to kill these cases, we will never learn the truth about the Bush Administration’s spying programs or hold companies accountable for breaking the law,” said ACLU/SC Executive Director Ramona Ripston. “Whether it is violating customers’ trust or breaking health and safety laws, this sends a message that companies can ignore the law with impunity then expect Congress to rewrite the Constitution.”
ACLU/SC members made phone calls and sent faxes to California’s Sen. Dianne Feinstein asking her not to support telecom immunity. She and Sen. Barbara Boxer voted against the final bill.
— Michael Soller, Thursday February 14, 2008 Comment
Project Censored #1 Underreported Story: No Habeas Corpus for "Any Person"
Project Censored has just come out with its list of the top 25 most underreported (or censored) stories for the past year. First on the list is the repeal of habeas corpus, the right to face your accuser and know the charges being held against you. From the Project Censored website
“With the approval of Congress and no outcry from corporate media, the Military Commissions Act (MCA) signed by Bush on October 17, 2006, ushered in military commission law for US citizens and non-citizens alike. While media, including a lead editorial in the New York Times October 19, have given false comfort that we, as American citizens, will not be the victims of the draconian measures legalized by this Act—such as military roundups and life-long detention with no rights or constitutional protections—Robert Parry points to text in the MCA that allows for the institution of a military alternative to the constitutional justice system for “any person” regardless of American citizenship. The MCA effectively does away with habeas corpus rights for “any person” arbitrarily deemed to be an “enemy of the state.” The judgment on who is deemed an “enemy combatant” is solely at the discretion of President Bush.
The oldest human right defined in the history of English-speaking civilization is the right to challenge governmental power of arrest and detention through the use of habeas corpus laws, considered to be the most critical parts of the Magna Carta which was signed by King John in 1215.
Alexander Hamilton wrote in The Federalist #84 in August of 1788:
The establishment of the writ of habeas corpus are perhaps greater securities to liberty and republicanism than any it [the Constitution] contains. The practice of arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious [British eighteenth-century legal scholar] Blackstone, in reference to the latter, are well worthy of recital:
“To bereave a man of life” says he, “or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.”
While it is true that some parts of the MCA target non-citizens, other sections clearly apply to US citizens as well, putting citizens inside the same tribunal system with non-citizen residents and foreigners.
Section 950q of the MCA states that, “Any person is punishable as a principal under this chapter [of the MCA] who commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission.”1
Section 950v. “Crimes Triable by Military Commissions” (26) of the MCA seems to specifically target American citizens by stating that, “Any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished as a military commission under this chapter may direct.”
“Who,” warns Parry, “has ‘an allegiance or duty to the United States’ if not an American citizen?”
Besides allowing “any person” to be swallowed up by Bush’s system, the law prohibits detainees once inside from appealing to the traditional American courts until after prosecution and sentencing, which could translate into an indefinite imprisonment since there are no timetables for Bush’s tribunal process to play out.
Section 950j of the law further states that once a person is detained, “ not withstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision) no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions.”
Other constitutional protections in the Bill of Rights, such as a speedy trial, the right to reasonable bail, and the ban on “cruel and unusual punishment,” would seem to be beyond a detainee’s reach as well.
Parry warns that, “In effect, what the new law appears to do is to create a parallel ‘star chamber’ system for the prosecution, imprisonment, and possible execution of enemies of the state, whether those enemies are foreign or domestic.
“Under the cloak of setting up military tribunals to try al-Qaeda suspects and other so-called unlawful enemy combatants, Bush and the Republican-controlled Congress effectively created a parallel legal system for ‘any person’—American citizen or otherwise—who crosses some ill-defined line.”
In one of the most chilling public statements ever made by a US Attorney General, Alberto Gonzales opined at a Senate Judiciary Committee hearing on Jan. 18, 2007, “The Constitution doesn’t say every individual in the United States or citizen is hereby granted or assured the right of habeas corpus. It doesn’t say that. It simply says the right shall not be suspended.”
More important than its sophomoric nature, Parry warns, is that Gonzales’s statement suggests he is still searching for arguments to make habeas corpus optional, subordinate to the President’s executive powers that Bush’s neoconservative legal advisers claim are virtually unlimited during “time of war.”
Read more at Project Censored website.
— Susanne Savage, Monday November 5, 2007 Comment
RESTORE Act, Bit by Bit
For those of you interested in the meta on the RESTORE Act, from our national office comes this section by section analysis.
Fortunately, the bill isn’t going anywhere at the moment, and the Senate bill that included retroactive immunity for the telecoms has a hold on it by Sen. Chris Dodd. Stay tuned.
SECTION BY SECTION ACLU Analysis
H.R. 3773, The RESTORE Act
AG= Attorney General
DNI = Director of National Intelligence
FISA= Foreign Intelligence Surveillance Act
FISC = Foreign Intelligence Surveillance Court
FISCR = Foreign Intelligence Surveillance Court of Review
Section 1: Title
Section 2: Foreign to Foreign — Clarifies that a court order is not required for the collection of foreign to foreign to foreign communications of non-US persons. If a US person is accidentally captured in this surveillance, his information must be destroyed within 7 days unless there is an emergency.
Foreign to US and vice versa —Permits the government to apply for a program order from the FISC, as long as it is targeting a foreigner overseas, to collect all communications coming into and going out of the United States, even if an American in the US is on the other end. Unlike the foreign to foreign program above, the government need not destroy Americans’ information. (see below for more detail)
Section 3(a-c): Creates application and approval process for these new surveillance programs to capture US-foreign and foreign-US communications. The application includes a statement that the “targets” of the electronic surveillance are non-US persons reasonably believed to be outside of the US who may communicating with persons inside the US. It should also include a description of the methods to determine that there is a reasonable belief that the targets are out of the U.S. and not US persons, and also to what extent the government plans to “minimize” US information (which does not mean destroy or purge, but try to limit the use of the information in certain circumstances).
Clarifies that the application need not even specify what “facilities, places, premises or property” will be tapped.
Problems: Sets up a probably unconstitutional “program warrant” or “general warrant” because it does not describe with particularity the accounts or people to be searched or the communications/records to be seized, as required by the Fourth Amendment.
Another concern is that the application will be virtually blank. It is unclear how useful the FISC oversight will be when the court knows neither who is targeted nor what facilities are even being accessed to collect the information.
Section 3(d): Sets up court review where the secret FISC evaluates whether the secret guidelines are reasonably calculated to determine that the targets are not US person and are outside of the US. Allows the government to appeal if an application for one of these programs is denied, and provides for interim orders while the appeal proceeds.
Section 3(e): On approval, the FISC order shall authorize the surveillance, direct telecommunication companies and other information “custodians” to turn over information and provide access to their facilities and infrastructure, and direct the government to pay the telecoms for their participation.
Clarifies that if telecoms refuse to cooperate they can be held in contempt of court.
A judge shall assess compliance with minimization procedures quarterly by “reviewing the circumstances under which information concerning US persons was acquired retained or disseminated.”
Problems: Only a significant purpose of the surveillance need be for “foreign intelligence” purposes, permitting this tool to be used primarily for other purposes such as criminal ones, allowing the government to go around long standing Fourth Amendment and Title III procedures.
Perhaps the biggest flaw of the entire bill, it leaves the decision of how to handle U.S information in the hands of the Administration and its secret “minimization procedures.” To clarify, minimization procedures are not, and have never been, made public. They do not require that American information be destroyed – except in the narrow circumstance of wiretapping an embassy, which absolutely does not apply to this program. In the end, the only role for the court is to negotiate secret rules that do not even require that American information be destroyed, or ultimately prevent American information from being used or disseminated. And there is no explicit authority for the court to modify the orders or the minimization procedures if it finds a problem during its quarterly review.
Section 4: Creates new emergency authority for the government to issue program orders without court review, lasting up to 45 days. Must file with court within 7 days of starting the new program.
Problem: Unlike the current emergency valve in FISA, the government can keep and use any information it collects under its self-issued emergency orders even if the court later determines that there was no emergency or the surveillance didn’t otherwise meet the requirements of FISA. This eliminates the current incentive to use emergency orders only in truly emergency situations.
Section 5: Orders must be sent to the Judicial and Intel Committees. The DOJ IG will conduct quarterly audits determining how many Americans are both targeted, and swept up without targeting under the new programs.
The government will also report quarterly about its compliance with the secret guidelines negotiated with the secret court and the use of the new 45-day emergency warrantless wiretapping authority.
Problems: The government will only be reporting to Congress whether the AG is following his own secret rules about when to return to court to get a warrant.
Further, the IG need not explain how the information about Americans is being used or who has access to it after it is collected through the newly permissible dragnet, but only report on the total numbers.
Section 6: Allows the FISC to sit en banc.
Section 7: Authorizes four more FISA judges for a total of 15.
Section 8: Reiterates that FISA is the exclusive means for foreign intelligence wiretapping.
Section 9: Allows the government to warrantless wiretap for 15 days if Congress expressly passes an AUMF to that effect or if the US is attacked and the Congress cannot convene.
Section 10: Requires an DOJ IG audit the so-called “Terrorist Surveillance Program” and any other collection outside of FISA. To be submitted in six months and discuss the legality of the programs.
Section 11: Institutes record keeping system.
Section 12: Provides for more resources to facilitate the new orders and audits.
Section 13: Requires electronic filing to be developed for FISA applications.
Section 14: Provides for further training of intelligence personnel and the FISA process.
Section 15: Requires a congressional briefing on the so-called “Terrorist Surveillance Program” and other surveillance programs within 7 days of passage.
Section 16: Technical and conforming amendments.
Section 17: Creates a sunset for the RESTORE Act on December 31, 2009.
Manager’s Amendment: Requires that the government give a certification to telecom companies that the program is pursuant to this new program to accompany the court order for compliance.
Manager’s Amendment: Extends the criminal statute of limitations under FISA from 5 to 10 years.
Manager’s Amendment: States that “Nothing in this Act or the amendments made by this Act shall be construed to prevent lawfully conducted surveillance of or grant any rights to an alien not lawfully permitted to be in or remain in the United States.”
— Susanne Savage, Thursday October 18, 2007 Comment
Frontline airs "Cheney's Law"
Tomorrow night the PBS series Frontline examines Vice President Dick Cheney’s 30 year quest to expand the powers of the presidency. It looks like must see TV!
— Susanne Savage, Monday October 15, 2007 Comment
Say No to Blankets
The last couple of days have been fast, a little confusing and very confounding for us here at the ACLU. As you know, Congress did a very bad thing in August by passing the Protect America Act, which granted our government the authority to wiretap ANYONE, including US citizens, without court approval. Jane Harman has loudly complained they were scared into passing this bill by the Administration which issued a whisper campaign to convince members of the House and Senate that there was an imminent threat to the Capitol itself. Leader Pelosi directed house members to get busy, fixing the problem.
What’s come down the pike is the RESTORE Act (Responsible Electronic Surveillance that is Overseen, Reviewed and Effective Act of 2007), introduced by John Conyers, Chairman of the House Judiciary Committee, and Sylvestre Reyes, Chairman of the House Intelligence Committee which provides for a number of safeguards and auditing provisions for American citizens, but also introduces what are called “blanket” or “umbrella” orders for surveillance that cover a whole class of targets rather than individual warrants for individual targets.
This concept of bundling people under one warrant is not new. In fact, it’s something the British did to Americans suspected of smuggling back in the 1760s that caused riots and the political upheaval that led to the American Revolution and the Declaration of Independence. For starters!
The Fourth Amendment of the Constitution was drawn up to deal with this very issue. The Founding Fathers wanted to make sure that King George III’s blanket warrants, or Writs of Assistance would be a thing of the past.
THIS is why blanket warrants are so abhorrent to the ACLU and why we cannot fully support the RESTORE Act. We’re being asked to trust a government that has lied to its people and a Congress that has abdicated its responsibility to uphold the Constitution.
Our lobbyist on FISA has advised us the hope is to get individualized warrants added to the Manager’s Amendment, which is the bill rewritten by the original sponsor. We want to put as much pressure on Chairman Conyers to add individualized warrants to the bill before it gets to the floor. If we end up getting an amendment on the floor of the House, we won’t win the vote.
The bill is now scheduled to be on the House floor next Wednesday.
There are many Democratic Judiciary committee members from Southern CA:
Howard Berman
Maxine Waters
Linda Sanchez
Brad Sherman
Adam Schiff
We need to put the pressure on these members to go to Conyers and ask him to change the bill to include individualized warrants instead of allowing basket warrants.
We will be calling on our supporters in the coming days to help us lobby for the Fourth Amendment. We believe the safety of our Constitution is not at odds with the safety of our country. After all, our Constitution IS our country.
— Susanne Savage, Thursday October 11, 2007 Comment
ACLU Urges Supreme Court to Review NSA Warrantless Wiretapping Case
The American Civil Liberties Union today urged the U.S. Supreme Court to review a legal challenge to the Bush administration’s warrantless surveillance activities. The case was filed on behalf of prominent journalists, scholars, attorneys and national advocacy organizations charging that the government’s illegal surveillance activities disrupt their ability to communicate effectively with sources and clients. Although the groups submitted uncontested evidence that the government’s illegal surveillance activities had compromised their ability to do their jobs, an appeals court dismissed the case last July because the plaintiffs could not state with certainty that they had been wiretapped by the National Security Agency.
“Innocent people who are harmed by illegal government surveillance should be able to challenge that surveillance in court,” said Jameel Jaffer, Director of the ACLU’s National Security Project. “It should not be left to executive branch officials alone to determine what limits apply to government surveillance and whether those limits are being honored.”
A federal district court sided with the ACLU on August 17, 2006, ruling that warrantless wiretapping by the National Security Agency violated Americans’ rights to free speech and privacy under the First and Fourth Amendments of the Constitution, ran counter to the Foreign Intelligence Surveillance Act (FISA) passed by Congress, and violated the principle of separation of powers. The court rejected the government’s argument that the president has the authority to ignore laws that regulate his ability to collect intelligence. Stating that there are “no hereditary kings in America and no power not created by the Constitution,” Judge Anna Diggs Taylor ordered the president to shut down the illegal program and to comply with the law.
The Bush administration appealed the ruling, and a three-judge panel of the Sixth Circuit Court of Appeals dismissed the case last July. However, the court did not uphold the legality of the government’s warrantless surveillance activity and the only judge to discuss the merits of the case clearly and unequivocally declared that the warrantless surveillance was unlawful.
“The president has claimed the power to disregard any law that, in his view, infringes on his ability to collect intelligence,” said Steven R. Shapiro, National Legal Director of the ACLU. “The government should not be able to avoid scrutiny of its surveillance activities simply by refusing to identify the victims of its unlawful behavior.”
Beginning in 2001, President Bush secretly authorized the National Security Agency to conduct electronic surveillance of people within the United States, including U.S. citizens, without a warrant. In August of 2007, Congress granted the Bush administration broad new surveillance powers in the so-called Protect America Act. In doing so, Congress ratified a program that is even more expansive than the one challenged by the ACLU’s lawsuit. However, the current law sunsets in February 2008. In the meantime, the ACLU is fighting all efforts to allow spying on Americans without warrants and is working to get Congress to put the judicial checks promised in the Fourth Amendment back into FISA.
In a related effort, the ACLU filed a motion with the Foreign Intelligence Surveillance Court (FISC) in August requesting the disclosure of its recent legal opinions concerning the scope of the government’s authority to engage in secret wiretapping of Americans. The secret court, in an unprecedented order, instructed the government to respond to the ACLU’s motion. In its response, the Bush administration argued that the secret court does not have the jurisdiction to consider the ACLU’s request at all and that the FISC should defer to the government’s determination that the rulings must be kept secret in their entirety. All briefs have been filed and a ruling on the ACLU’s motion is forthcoming.
The ACLU’s Supreme Court cert petition is available online at: www.aclu.org/safefree/nsaspying/32054lgl20071003.html
More information about the ACLU’s lawsuit against the NSA, a copy of the FISA court order, the ACLU’s motion to the FISA court, the government’s response and other related materials are available online at: www.aclu.org/safefree/spying
— Susanne Savage, Wednesday October 3, 2007 Comment
