I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Friday, September 08, 2006

Another major NSA legal defeat for the Bush administration

(updated below)

A federal judge in Oregon yesterday became the third consecutive judge (after Judge Walker in the Northern District of California and Judge Taylor in the Eastern District of Michigan) to reject the Bush administration's claim that national security concerns (i.e., the "state secrets" doctrine) bar courts from ruling on the legality of the NSA warrantless eavesdropping program. The ruling (.pdf), from Federal Judge Garr King, resoundingly rejected the Bush administration's now-standard tactic for placing the President's conduct beyond the reach of the law, and Judge King used reasoning identical to that used by the two prior federal judges who also rejected the Bush administration's claims:

King ruled that the NSA program is hardly secret anymore, and the Oregon charity can attempt to prove that some of its private conversations were picked up by the eavesdropping program.

"The existence of the surveillance program is not a secret, the subjects of the program are not a secret and the general method of the program -- including that it is warrantless -- is not a secret," King wrote. "Where plaintiffs know whether their communications have been intercepted, no harm to national security would occur if plaintiffs are able to prove the general point that they were subject to surveillance."

This decision is remarkable in several respects. And it is the latest example of a clear, extraordinary and extremely encouraging trend where the federal judiciary is finally re-asserting its role in imposing checks and limits on the Bush administration by compelling the administration to abide by the law.

The case in Oregon arguably presents the most potent legal challenge to the NSA warrantless program. The most significant hurdle for plaintiffs to overcome in the other lawsuits (including the one before Judge Taylor) is the need to prove "standing" -- i.e., that the plaintiffs were actually harmed by the warrantless eavesdropping program, a burden that is exceedingly difficult to meet because the Bush administration has been eavesdropping in secret and with no oversight -- while its allies in Congress have blocked any investigations into the program -- and therefore nobody knows who has been subject to the eavesdropping program.

But in the Oregon case, the plaintiff, an Islamic charity, has alleged that the NSA eavesdropped without warrants on conversations between an officer of the charity (who was in Saudi Arabia at the time) and the charity's own lawyers (in Washington, DC). And they have compelling evidence to support that allegation -- namely, a classified NSA log listing calls intercepted by the NSA which was accidentally provided by Justice Department lawyers to the charity's lawyers. According to the charity's lawyers, that document reveals that the NSA eavesdropped on the calls between the charity and their own lawyers as part of the warrantless eavesdropping program, which gives the plaintiffs standing to challenge the legality of that eavesdropping.

Once the charity's lawyers revealed that they had received that document and furnished it to the court, the DoJ demanded that the court return all copies to the FBI -- a request which Judge King defiantly refused on the ground that the FBI was a party to the lawsuit and therefore should not be entrusted with its safekeeping. Instead, Judge King ordered the document to be kept by prosecutors in Oregon. The DoJ then argued that the charity should not be allowed to use that document as the basis to prove "standing" because that document is so classified that its use by plaintiffs in the lawsuit would damage national security.

Relatedly, The Oregonian has been impressively fulfilling its journalistic duties with regard to this case, not only by reporting on the lawsuit intelligently and aggressively (which it has been doing), but also:

In a separate development, The Oregonian newspaper reported Thursday that it had filed suit last week seeking documents in the case.

"If the government is committing crimes against its citizens, the public is entitled to know the nature of the crimes," said the newspaper's attorney, Charles Hinkle.

The court previously instructed the DoJ to find a compromise to allow the document to be used in the lawsuit without jeopardizing national security, and last week, during Oral Argument, chided the DoJ lawyers because -- as is typical for the Bush administration in national security cases -- they simply ignored the court's instruction:

"It seems to me the cases have instructed the courts to be original," King told lawyers from the Justice Department. "I don't hear that from you at all."

The court's decision indicated that it may ultimately prove to be the case that plaintiffs cannot prove that they were subjected to warrantless eavesdropping without compromising national security, but said: "I am just not prepared to dismiss this case without first examining all available options and allowing plaintiffs their constitutional right to seek relief in this court."

Before the Bush administration began abusing what was the rarely used "state secrets" doctrine, it was virtually automatic for courts to defer to the President's claim that national security precluded judicial examination of certain issues. But yesterday's ruling follows in the footsteps of the decisions by Judge Walker and Judge Taylor, and constitutes a clear sign that the federal courts no longer have sufficient trust in the Bush administration's use of this doctrine and will, consequently, subject it to scrutiny rather than just blindly accepting it as courts have done in the past.

The Specter bill is, of course, designed to fix this problem for the administration (i.e., that the President's conduct is being subjected by courts to the rule of law) by removing all of these cases from these disobedient federal judges and consolidating them all with the secret FISA court, and then on top of that, adding huge hurdles for the plaintiffs to succeed. But the combination of mildly uppity Congressional Republicans and the heroic efforts of Russ Feingold has disrupted, at least for now, the administration's hope for quick and painless passage of that bill. In the meantime, the federal courts continue to re-assert their role in our system of government of holding all citizens, including the President, accountable under the law -- exactly the result which the administration has been most desperately seeking to avoid.

UPDATE: A copy of the court's decision is here (.pdf - h/t Jao). The court denied The Oregonian's motion to unseal the document which was inadvertently provided by the DoJ to plaintiffs on the ground that inadvertent production doesn't render the document unclassified. Judge King's opinion here is, in one key respect, the very opposite of Judge Taylor's, as it is self-consciously restrained, going out of its way not to make any rulings other than those which are absolutely necessary, even postponing numerous decisions that he will almost certainly have to make until such time that doing so is necessary.

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