Notes on the ACLU's 6th Circuit Oral Argument

American Civil Liberties Union: Blog

by Christina Drummond, ACLU of Washington

http://blog.aclu.org/index.php?/authors/41-Christina-Drummond

Wednesday, January 31, 2007

Notes on the ACLU's 6th Circuit Oral Argument
ACLU v. NSA

Continuing from my earlier post about
the government's argument.

Ann Beeson focused the ACLU's argument on a narrow legal issue: must the
President abide by FISA? She highlighted how a failure to decide on this
issue
would leave the President to follow/not follow the law as he sees fit. And
regarding mootness - she noted that if one voluntarily ceases illegal
activity
(in this case, going outside FISA), that does not make the illegality moot.
And to address the questions of standing, she emphasized how three other
Courts
found standing to hear cases about the program.

Judge Gibbons noted that the harm done to the Plaintiff's resulted from
decisions made by the clients -- to which Ms. Beeson remarked that it was a
professional
and ethical responsibility of the Plaintiffs that lead them to change their
behavior -- professionally they had no choice precisely because of the TSP.
Judge Gibbons questioned the allegation that the Plaintiff's were talking to
terrorists or individuals associated with Al Qaeda. Ann responded by telling
the specific stories of two defense lawyer who are plaintiffs with the ACLU;
individuals who represent those accused of terrorist related crimes. She
also
describe the situation of a plaintiff who is a freelance journalist who
reports on the Middle East.

Judge Gilman asked for thoughts on the government's reliance on Laird, to
which Ms. Beeson responded that the Plaintiff's have suffered concrete
harm -
they not only had to stop communicating but also had to incur costs. Plus,
the government has shown no evidence disputing that the Plaintiff's have
suffered
harm.

Judge Gilman asked if they should consider holding a future evidentiary
hearing, yet the ACLU noted it's request for summary judgment because both
sides
have had a chance to present evidence.

Ms. Beeson continued with why the Court can easily affirm Judge Taylor's
decision -- in short by saying that FISA provides the exclusive means for
domestic
surveillance and that the President has no authority outside of FISA. She
raised the President's power under FISA to conduct warrant-less surveillance
15 days after the start of a war, and up to 72 hours before getting FISA
approval - and then noted how the TSP has continued despite FISA for over
four
years, despite the specific laws put in place by Congress to address such
war-time surveillance.

As Ms. Beeson summed things up,
"Now it's for the Court to check the Executive branch. Congress did its
part."

Details From the Back Row

ACLU v. NSAJudges Alice Batchelder, Ronald Gilman and Julia Gibbons presided
over a full standing-room only court of over 100 people. Mr. Greg Garre,
Deputy
Solicitor General, argued for the government and Ann Beeson, ACLU's
Associate Legal Director and Director of the National Security and Human
Rights programs
argued for the lawyer, journalist, and researcher plaintiffs.

The government's argument was two-fold:
1) jurisdictional issues should sway the Court. Namely: a) that the
Plaintiff's lack standing because they couldn't prove they were the subject
of surveillance
and thereby suffered as a result and b) that the entire case was now moot
since the TSP was now subject to FISA
2) if the Court didn't buy the above, then it should agree that the state
secrets protection applies and accordingly reverse Taylor's ruling.

This was the extent of the government's oral argument - Mr. Garre didn't
address the merits of the case nor Taylor's finding that the Terrorist
Surveillance
Program was unconstitutional and needed to be ceased.

Mr. Garre focused most of his argument on how the ACLU's 1st Amendment
argument (re: Plaintiff's having to change their behavior because of the
program)
was based on merely the fear of being subject to surveillance - not actual
proof of surveillance activity, which could not be disclosed because of
state
secrets. Judge Gibbons asked for clarification on how other claims of
damages fit in, like the damage to research? The government claimed that all
other
injuries resulted from the fear (not proof) of surveillance, and therefore
were irrelevant.

There was a lot of discussion around the applicability of Laird v. Tatum
which is something I'm going to let my fellow bloggers write about since I'm
not
a lawyer. Or you can read the
legal brief.

Judge Gibbons asked if this set of Plaintiff's didn't have standing; who
would. The government clarified their position that the plaintiff must be an
actual
subject of surveillance in order to have the 4th Amendment argument apply,
and since the Plaintiff's in this case have no proof of being surveilled,
the
change in their actions based on presumption is not sufficient.

With regards to the moot argument, Judge Gilman noted that the government
volunteered to put TSP under FISA, and could similarly opt-out anytime.
Judge
Batchelder also noted that it was odd that the government voluntarily went
to the FISA Court. Judge Gilman pressed for clarification that the
government's
position was that they could abandon FISA anytime. Mr. Garre responded,
"Absolutely true your honor", and Judge Gibbons remarked that this could
occur
in the future should the Executive branch feel the need to conduct
surveillance beyond the parameters set by FISA.

On the topic of state secrets, the government claimed that in order to
establish whether or not a search was reasonable, you'd have to know details
about
the search, such as what communications were intercepted, how it was
intercepted, and what technology was used. And -- you guessed it -- that's a
matter
of state secrets.

Judge Gilman interestingly remarked that they don't have to reach 1st/4th
Amendment issues if they stop at FISA. Could this perchance indicate a
leaning?

In the Government's final comments before the ACLU took the floor, Mr. Garre
emphasized that this case must be viewed with respect to the
constitutionality
of the President's powers in wartime -- and that it was not possible to
resolve the FISA/Separation of Powers issues without getting into state
secrets.

More to come...

Kafkaesque

ACLU v. NSAThe word I heard most this morning - kafkaesque.
For those who may not be familiar with Kafka's novel
The Trial,
I highly recommend both it and the
film adaptation
by Orson Welles. The story is about a man arrested and put on trial for an
unspecified crime that he cannot get details about because the system
doesn't
allow it.

Fresh from breakfast with the plaintiffs, legal team and other ACLU folks
here in Cincinnati, I am struck by how many times the word "Kafkaesque" came
up
in conversation about the government's legal practices around terrorism
cases. Why? Because the government's lawyers have taken to claiming that
their
evidence is so secret that only the government's team and the judges can see
it, not the opposing party.

Like me you're likely thinking, really? Well, Courts have in the past
allowed such secret evidence to prove an existing relationship that's
tangential to
the actual case at hand. So, you could introduce files to prove a
client-attorney or doctor-patient relationship.

But recently there has been a growing trend of the Justice Department's use
of a 'terrorist cases are special' doctrine, where parties opposing the
government
lawyers have no rights to the evidence because it's "classified".

I understand wanting to keep a client's files private when proving a
relationship to a witness. But that's different than presenting evidence on
someone's
guilt/innocence or in today's hearing, the mootness of the case (i.e.
whether or not the hearing should continue). For ACLU v. NSA, the Government
introduced
evidence bearing on one of the key points to be argued, yet that evidence
has only been made available to the judges

How can one side effectively argue when it doesn't have all the evidence?
For those of you who may be learning of this for the first time -- know that
this
practice is also used in criminal cases, where a defendant is tried for
terrorism, but is not shown the evidence against him because it is "secret".
It
appears that for anything, if it's related to terrorism, then it's a state
secret -- or as the government would like to have it, anything goes.

So where does this leave us? For now, stay tuned, watch the growing interest
from Congress (covered by blogs like
27B Stroke6)
and
take action!

No One Is Above the Law...

ACLU v. NSAJames Bamford, one of the plaintiffs in the ACLU v. NSA case,
authored an
op-ed in today's New York Times,
talking about how historically, even Presidents were held accountable when
they broke the law. As Bamford writes:
Laws are broken, the federal government investigates, and the individuals
involved -- even if they're presidents -- are tried and, if found guilty,
punished.
That is the way it is supposed to work under our system of government. But
not this time.

Last Aug. 17, Judge Anna Diggs Taylor of the United States District Court in
Detroit issued her ruling in the A.C.L.U. case. The president, she wrote,
had
"undisputedly violated" not only the First and Fourth Amendments of the
Constitution, but also statutory law, the Foreign Intelligence Surveillance
Act.
Enacted by a bipartisan Congress in 1978, the FISA statute was a response to
revelations that the National Security Agency had conducted warrantless
eavesdropping
on Americans. To deter future administrations from similar actions, the law
made a violation a felony punishable by a $10,000 fine and five years in
prison.

Yet despite this ruling, the Bush Justice Department never opened an F.B.I.
investigation, no special prosecutor was named, and there was no talk of
impeachment
in the Republican-controlled Congress.

I should plug that for those back home in Washington State, Bamford will be
giving the keynote at our
ACLU of Washington Membership Conference on February 24th --
which is open to the public.

Tuesday, January 30, 2007

This is Why We Need Oversight!

ACLU v. NSAOn the eve of the 6th Circuit hearing for the
ACLU v. NSA case,
we learn about
even more vacuum cleaner approaches to domestic surveillance,
except this time it's under the guise of the FBI and not the NSA. Evidently
entire streams of information are being sucked up, to be mined later by data
analysis techniques.

Data-mining algorithms enable the systematic profiling of all people, with
the intent of mining the good apples from the bad. Yet, who tells the
computer
what a "bad apple" is? And, you need everyone's data to search through --
everyday lawful Americans and the actual terrorists. Is trampling the rights
of
everyone in this country absolutely necessary in order to find the few bad
apples?

Such data mining expects that terrorists never change their behavior, or it
requires a history of data to establish patterns over time. In my opinion,
the
government has absolutely no right to keep such ongoing tabs on lawful
citizens, and I believe our founding fathers would have agreed.

In the 1960's and 1970's, our day-to-day lives and communications were not
recorded in bits and bytes. Now that we have so much more interaction with
technology,
we desperately need oversight and protections to keep those in power from
trampling our freedoms.

The 6th Circuit hearing regarding the NSA's warrantless wiretapping program
is tomorrow at 3pm EST. I'll be blogging throughout the day from Cincinnati,
so more to come on what's up for discussion and how the arguments go.