By Anne Schneider
In passing the “Protect America Act of 2007,” Congress gave in to President Bush and legalized his warrantless wiretapping without ever learning the full extent of the illegal program. But several lawsuits are still pending that may uncover details of the terrorist surveillance program and have it declared unconstitutional. After the secret NSA spying program was revealed by the press in December 2005, Detroit Judge Anna Taylor Diggs was the first to order the controversial program shut down. Writing in a 43-page opinion issued in August 2006, she said, “There are no hereditary kings in America and no powers not created by the Constitution.” But her ruling never went into effect due to a stay, and the U.S. Court of Appeals for the Sixth Circuit reversed her decision and dismissed the lawsuit in July 2007 for lack of legal standing.
But other suits remain very much alive, despite Congress’ capitulation and efforts to end the litigation.
In San Francisco, the Electronic Frontier Foundation filed a class-action lawsuit against AT&T in January 2006 on behalf of all those whose communications were intercepted by the government. Its star witness was Mark Klein, a technician who revealed that AT&T had set up a secret, secure room for the NSA in at least one of the company’s facilities to collect e-mail and other internet communications. In July 2006, U.S. District Judge Vaughn Walker denied the government’s motion to dismiss the suit: “The compromise between liberty and security remains a difficult one. But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security.”
The government’s appeal of Judge Walker’s decision was heard by the U.S. Court of Appeals for the 9th Circuit in August. The panel of judges demanded to know, “Is it the government’s position that when our country is engaged in a war that the power of the executive when it comes to wiretapping is unchecked?” The government claims that the existence of the program is a state secret. Two of the three judges on the panel must vote to permit the suit to continue, even in the face of the Protect America Act.
Along with the Electronic Frontier’s suit, the 9th Circuit considered the wiretapping of al-Haramain Islamic Foundation on Aug. 15. In this case, the government inadvertently turned over a log showing the intercepted communications. Six weeks later, after realizing what had happened, the government demanded the log back. In refusing the government’s motion to dismiss the suit on national security grounds, Judge Garr King in Portland said, “It is no longer secret to plaintiffs whether their communications were intercepted as described in the sealed document.”
Meanwhile, a secret decision in the Northern District of New York is being challenged by the New York Civil Liberties Union. In the course of defending the usefulness of the secret NSA spying program after it was publicly revealed, “unnamed government sources” cited the prosecution of Yassin Aref and Mohammed Hossain, two American citizens from Albany who were the targets of a confidential informant faking a plot to kill a Pakistani diplomat at the United Nations. Aref and Hossain then moved to suppress the illegally-gained evidence.
The government opposed the suppression motion and was allowed to submit secret evidence. They also requested that the government’s decision on the motion be sealed. The NYCL U is appealing the secrecy of the decision to the U.S. Court of Appeals for the 2nd Circuit, saying a federal court decision is a matter of public importance.
In each of these three challenges, the plaintiffs have direct evidence of the wiretapping program. Therefore, the circuit courts cannot say they lack standing, as the Cincinnati appeals court said to Judge Anna Taylor Diggs.