NSA Warrantless Surveillance Controversy - Developments

Developments

In mid-August 2007, a three-judge panel of the United States Court of Appeals for the Ninth Circuit heard arguments in two lawsuits challenging the surveillance program. The appeals were the first to reach the court after dozens of civil suits against the government and telecommunications companies over NSA surveillance were consolidated last year before the chief judge of the United States District Court for the Northern District of California, Vaughn R. Walker. One of the cases is a class-action lawsuit against AT&T, focusing on allegations that the company provided the NSA with its customers' phone and Internet communications for a vast data-mining operation. Plaintiffs in the second case are the al-Haramain Foundation Islamic charity and two of its lawyers.

On November 16, 2007, the three judges — M. Margaret McKeown, Michael Daly Hawkins, and Harry Pregerson — issued a 27-page ruling that the charity, the Al-Haramain Islamic Foundation, could not introduce a key piece of evidence in its case because it fell under the government's claim of state secrets, although the judges said that "In light of extensive government disclosures, the government is hard-pressed to sustain its claim that the very subject matter of the litigation is a state secret."

In an August 14, 2007, question-and-answer session with the El Paso Times newspaper which was published on August 22, Director of National Intelligence Mike McConnell confirmed for the first time that the private sector helped the warrantless surveillance program. McConnell argued that the companies deserved immunity for their help: "Now if you play out the suits at the value they're claimed, it would bankrupt these companies". Plaintiffs in the AT&T suit subsequently filed a motion with the court to have McConnell's acknowledgement admitted as evidence in their case.

The program may face an additional legal challenge in the appeal of two Albany, New York, men convicted of criminal charges in an FBI anti-terror sting operation. Their lawyers say they have evidence the men were the subjects of NSA electronic surveillance, which was used to obtain their convictions but not made public at trial or made available in response to discovery requests by defense counsel at that time.

In an unusual related legal development, on October 13, 2007, The Washington Post reported that Joseph P. Nacchio, the former CEO of Qwest Communications, is appealing an April 2007 conviction on 19 counts of insider trading by alleging that the government withdrew opportunities for contracts worth hundreds of millions of dollars after Qwest refused to participate in an unidentified National Security Agency program that the company thought might be illegal. According to court documents unsealed in Denver in early October as part of Nacchio's appeal, the NSA approached Qwest about participating in a warrantless surveillance program more than six months before the Sept. 11, 2001, attacks which have been cited by the government as the main impetus for its efforts. Nacchio is using the allegation to try to show why his stock sale should not have been considered improper. According to a lawsuit filed against other telecommunications companies for violating customer privacy, AT&T began preparing facilities for the NSA to monitor "phone call information and Internet traffic" seven months before 9/11.

On August 17, 2007, the Foreign Intelligence Surveillance Court said it would consider a request filed by the American Civil Liberties Union which asked the intelligence court to make public its recent, classified rulings on the scope of the government's wiretapping powers. Judge Colleen Kollar-Kotelly, presiding judge of the FISC, signed an order calling the ACLU's motion "an unprecedented request that warrants further briefing." The FISC ordered the government to respond on the issue by August 31, saying that anything involving classified material could be filed under court seal. On the August 31 deadline, the National Security Division of the Justice Department filed a response in opposition to the ACLU's motion with the court.

In previous developments, the case ACLU v. NSA was dismissed on July 6, 2007 by the United States Court of Appeals for the Sixth Circuit. The court did not rule on the spying program's legality. Instead, its 65-page opinion declared that the American Civil Liberties Union and the others who brought the case - including academics, lawyers and journalists - did not have the legal standing to sue because they could not demonstrate that they had been direct targets of the clandestine surveillance. Detroit District Court judge Anna Diggs Taylor had originally ruled on August 17, 2006 that the program is illegal under FISA as well as unconstitutional under the First and Fourth Amendments of the United States Constitution. Judicial Watch, a watchdog group, discovered that at the time of the ruling Taylor "serves as a secretary and trustee for a foundation that donated funds to the ACLU of Michigan, a plaintiff in the case." On February 19, 2008, the U.S. Supreme Court, without comment, turned down an appeal from the American Civil Liberties Union, letting stand the earlier decision dismissing the case.

On September 28, 2006 the U.S. House of Representatives passed the Electronic Surveillance Modernization Act (H.R. 5825). That bill now has been passed to the U.S. Senate where three competing, mutually-exclusive, bills—the Terrorist Surveillance Act of 2006 (S.2455) (the DeWine bill), the National Security Surveillance Act of 2006 (S.2455) (the Specter bill), and the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006 (S.3001) (the Specter-Feinstein bill) -- were themselves referred for debate to the full Senate by the Senate Judiciary Committee on September 13, 2006. Each of these bills would in some form broaden the statutory authorization for electronic surveillance, while still subjecting it to some restrictions. The Specter-Feinstein bill would extend the peacetime period for obtaining retroactive warrants to seven days and implement other changes to facilitate eavesdropping while maintaining FISA court oversight. The DeWine bill, the Specter bill, and the Electronic Surveillance Modernization Act (passed by the House) would all authorize some limited forms or periods of warrantless electronic surveillance subject to additional programmatic oversight by either the FISC (Specter bill) or Congress (DeWine and Wilson bills).

On January 17, 2007, Attorney General Alberto Gonzales informed U.S. Senate leaders by letter that the program would not be reauthorized by the President. "Any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court," according to his letter.

On September 18, 2008, the Electronic Frontier Foundation (EFF), an Internet-privacy advocacy group, filed a new lawsuit against the NSA, President George W. Bush, Vice President Dick Cheney, Cheney's chief of staff David Addington, former Attorney General and White House Counsel Alberto Gonzales and other government agencies and individuals who ordered or participated in the warrantless surveillance. They sued on behalf of AT&T customers to seek redress for what the EFF alleges to be an illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records. An earlier, ongoing suit by the EFF may be bogged down by the recent changes to FISA provisions, but these are not expected to impact this new case.

On January 23, 2009, the administration of President Barack Obama adopted the same position as his predecessor when it urged U.S. District Judge Vaughn Walker to set aside a ruling in Al-Haramain Islamic Foundation et al. v. Obama, et al. The Obama administration also sided with the former administration in its legal defense of July, 2008 legislation that immunized the nation's telecommunications companies from lawsuits accusing them of complicity in the eavesdropping program, according to testimony by Attorney General Eric Holder.

On March 31, 2010, Judge Vaughn R. Walker, chief judge of the Federal District Court in San Francisco, ruled that the National Security Agency’s program of surveillance without warrants was illegal when it intercepted phone calls of Al Haramain. Declaring that the plaintiffs had been "subjected to unlawful surveillance", the judge said the government was liable to pay them damages.

The Joint Automated Booking System is a U.S. Federal government computer system that puts photos of individual's bodies, their fingerprints etc. into a national database. DOJ published a Privacy Act notice in the Federal Register that the categories of individuals whose records should be in the Nationwide Joint Automated Booking System system are "alleged criminal offenders" and no one else. However, in 2012 Federal Judge John D. Bates ruled that "JABS was not limited to arrests for a criminal charge."