ACLU and others sue to end spying on US citizens

ACLU Sues to Stop Illegal Spying on Americans
t r u t h o u t | Press Release

Tuesday 17 January 2005

Prominent journalists, nonprofit groups, terrorism experts and community advocates join first lawsuit to challenge new NSA spying program.
New York - Saying that the Bush administration's illegal spying on Americans must end, the American Civil Liberties Union today filed a first-of-its-kind lawsuit against the National Security Agency seeking to stop a secret electronic surveillance program that has been in place since shortly after September 11, 2001.

"President Bush may believe he can authorize spying on Americans without judicial or Congressional approval, but this program is illegal and we intend to put a stop to it," said ACLU Executive Director Anthony D. Romero. "The current surveillance of Americans is a chilling assertion of presidential power that has not been seen since the days of Richard Nixon."

The lawsuit was filed on behalf of a group of prominent journalists, scholars, attorneys, and national nonprofit organizations (including the ACLU) who frequently communicate by phone and e-mail with people in the Middle East. Because of the nature of their calls and e-mails, they believe their communications are being intercepted by the NSA under the spying program. The program is disrupting their ability to talk with sources, locate witnesses, conduct scholarship, and engage in advocacy. The program, which was first disclosed by The New York Times on December 16, has sparked national and international furor and has been condemned by lawmakers across the political spectrum.

In addition to the ACLU, the plaintiffs in today's case are:

Authors and journalists James Bamford, Christopher Hitchens and Tara McKelvey
Afghanistan scholar Barnett Rubin of New York University's Center on International Cooperation and democracy scholar Larry Diamond, a fellow at the Hoover Institution
Nonprofit advocacy groups NACDL, Greenpeace, and Council on American Islamic Relations, who joined the lawsuit on behalf of their staff and membership
"The prohibition against government eavesdropping on American citizens is well-established and crystal clear," said ACLU Associate Legal Director Ann Beeson, who is lead counsel in ACLU v. NSA. "President Bush's claim that he is not bound by the law is simply astounding. Our democratic system depends on the rule of law, and not even the president can issue illegal orders that violate Constitutional principles."

According to news reports, President Bush signed an order in 2002 allowing the NSA to monitor the telephone and e-mail communications of "hundreds, perhaps thousands, of people inside the United States" with persons abroad, without a court order as the law requires. Under the program, the NSA is also engaging in wholesale datamining by sifting through millions of calls and e-mails of ordinary Americans.

Journalist James Bamford, a plaintiff and one of the world's leading experts on U.S. intelligence and the National Security Agency, said that "the spying program removes a necessary firewall that would prevent the kind of government abuse seen during the Watergate scandal." Bamford was threatened with prosecution in the 1970s as he prepared to disclose unclassified details about illegal NSA spying on Americans in his book, The Puzzle Palace.

In the legal complaint filed, the ACLU said the spying program violates Americans' rights to free speech and privacy under the First and Fourth Amendments of the Constitution.

The ACLU also charged that the program violates the Constitution because President Bush exceeded his authority under separation of powers principles. Congress has enacted two statutes, the Foreign Intelligence Surveillance Act and Title III of the federal criminal code, which are "the exclusive means by which electronic surveillance. . . and the interception of domestic wire, oral, and electronic communications may be conducted."

The lawsuit, filed in U.S. District Court in the Eastern District of Michigan, seeks a court order declaring that the NSA spying is illegal and ordering its immediate and permanent halt. Attorneys in the case are Beeson, Jameel Jaffer, and Melissa Goodman of the national ACLU Foundation, and Michael Steinberg of the ACLU of Michigan.The lawsuit names as defendants the NSA and Lieutenant General Keith B. Alexander, the current the Director of the NSA.

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For more information on the lawsuit, including the legal complaint, fact sheets on the case law and on the NSA spying program, and links to statements from the plaintiffs in the lawsuit, please go to www.aclu.org/.

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National Lawyers Guild Supports Suit against Illegal Spying
t r u t h o u t | Press Release

Tuesday 17 January 2006

The National Lawyers Guild (NLG) will be providing legal counsel to the Center for Constitutional Rights and its attorneys in a suit to enjoin President Bush from engaging in illegal electronic surveillance without court orders. Michael Avery, President of the NLG, will be handling the case on behalf of the Guild and working with lawyers from the Center itself. Avery is a constitutional law professor at Suffolk Law School in Boston.

NLG President Michael Avery stated, "The president has no power under the Constitution to conduct electronic surveillance without a warrant. His claim that his role as commander in chief of the military gives him this power is an attempt to create an imperial presidency, in which the president is not subject to checks and balances by either the judiciary or by Congress. President Bush's actions are a threat to the continued existence of American constitutional democracy."

The Lawyers Guild noted that the suit is based on the fact that the Fourth Amendment forbids searches and electronic surveillance without a court order, and that Congress has explicitly provided that the only legal way to conduct electronic surveillance in national security cases is with a court order from the Foreign Intelligence Surveillance Court or through ordinary criminal channels with a warrant from a United States District Court. The only exceptions to this requirement do not apply to the surveillance the president has authorized. Congress has made the surveillance that the president is conducting a criminal offense, a felony punishable by a five-year prison term.

The Executive Director of the Guild, Heidi Boghosian, noted, "The Center for Constitutional Rights has played an essential role in providing legal assistance for victims of the president's abuses of power, such as the prisoners at Guantanamo and others. The Guild is proud to provide our lawyers to the Center to help them halt the illegal electronic surveillance that is making it difficult for them to carry on their important work."

Founded in 1937 as the first racially integrated national bar association, the National Lawyers Guild is the oldest and largest public interest/human rights bar organization in the United States, with more than 200 chapters. The Guild has a long history of representing individuals whose rights the government has violated by abusing its powers in the name of national security. Guild members defended FBI-targeted individuals and helped expose illegal FBI and CIA surveillance, infiltration and disruption tactics (COINTELPRO) that the U.S. Senate "Church Commission" hearings detailed in 1975-76 and which led to enactment of the Freedom of Information Act and other specific limitations on federal investigative power.

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Two Groups Plan Lawsuits over Federal Eavesdropping
By Eric Lichtblau
The New York Times

Tuesday 17 January 2006

Washington - Two leading civil rights groups say they plan to file lawsuits Tuesday against the Bush administration over its domestic spying program to determine whether the operation was used to monitor 10 defense lawyers, journalists, scholars, political activists and other Americans with ties to the Middle East.

The two lawsuits, which are being filed separately by the American Civil Liberties Union in Federal District Court in Detroit and the Center for Constitutional Rights in Federal District Court in Manhattan, are the first major court challenges to the eavesdropping program.

Both groups are seeking to have the courts order an immediate end to the program, which the groups say is illegal and unconstitutional. The Bush administration has strongly defended the legality and necessity of the surveillance program, and officials said the Justice Department would probably vigorously oppose the lawsuits on national security grounds.

Justice Department officials would not comment on any specific individuals who might have been singled out under the National Security Agency program, and they said the department would review the lawsuits once they were filed.

Brian Roehrkasse, spokesman for the Justice Department, added Monday that "the N.S.A. surveillance activities described by the president were conducted lawfully and provide valuable tools in the war on terrorism to keep America safe and protect civil liberties."

The lawsuits seek to answer one of the major questions surrounding the eavesdropping program: has it been used solely to single out the international phone calls and e-mail messages of people with known links to Al Qaeda, as President Bush and his most senior advisers have maintained, or has it been abused in ways that civil rights advocates say could hark back to the political spying abuses of the 1960's and 70's?

"There's almost a feeling of déjà vu with this program," said James Bamford, an author and journalist who is one of five individual plaintiffs in the A.C.L.U. lawsuit who say they suspect that the program may have been used to monitor their international communications.

"It's a return to the bad old days of the N.S.A.," said Mr. Bamford, who has written two widely cited books on the intelligence agency.

Although the program's public disclosure last month has generated speculation that it may have been used to monitor journalists or politicians, no evidence has emerged to support that idea. Bush administration officials point to a secret audit by the Justice Department last year that reviewed a sampling of security agency interceptions involving Americans and that they said found no documented abuses.

The lawsuit to be filed by the Center for Constitutional Rights has as plaintiffs four lawyers at the center and a legal assistant there who work on terrorism-related cases at Guantánamo Bay, Cuba, and overseas, which often involves international e-mail messages and phone calls. Similarly, the plaintiffs in the A.C.L.U. lawsuit include five Americans who work in international policy and terrorism, along with the A.C.L.U. and three other advocacy groups.

"We don't have any direct evidence" that the plaintiffs were monitored by the security agency, said Ann Beeson, associate legal director for the A.C.L.U. "But the plaintiffs have a well-founded belief that they may have been monitored, and there's a real chilling effect in the fear that they can no longer have confidential discussions with clients or sources without the possibility that the N.S.A. is listening."

One of the A.C.L.U. plaintiffs, Larry Diamond, a senior fellow at the Hoover Institute, said that a Stanford student studying in Egypt conducted research for him on political opposition groups, and that he worried that communications between them on sensitive political topics could be monitored. "How can we communicate effectively if you risk being intercepted by the National Security Agency?" Mr. Diamond said.

Also named as plaintiffs in the A.C.L.U. lawsuit are the journalist Christopher Hitchens, who has written in support of the wars in Iraq and Afghanistan; Barnett R. Rubin, a scholar at New York University who works in international relations; Tara McKelvey, a senior editor at The American Prospect; the National Association of Criminal Defense Lawyers; Greenpeace, the environmental advocacy group; and the Council on American-Islamic Relations, the country's largest Islamic advocacy group.

The lawsuits over the eavesdropping program come as several defense lawyers in high-profile terrorism cases around the country have begun legal challenges on behalf of their clients, arguing that the government may have improperly hidden the use of the surveillance program from the courts in investigating terrorism leads.

Bill Goodman, legal director for the Center for Constitutional Rights, said that in suing in federal court to block the surveillance program, his group believed "without question" that Mr. Bush violated the Foreign Intelligence Surveillance Act, which governs wiretaps, by authorizing the security agency operation.

But Mr. Goodman acknowledged that in persuading a federal judge to intervene, "politically, it's a difficult case to make."

He added: "We recognize that it's extremely difficult for a court to stand up to a president, particularly a president who is determined to extend his power beyond anything envisioned by the founding fathers. That takes courage."

The debate over the legality of Mr. Bush's eavesdropping program will be at the center of Congressional hearings expected to begin next month. Former Vice President Al Gore entered the fray on Monday with a speech in Washington that accused Mr. Bush of running roughshod over the Constitution.

American liberties, Mr. Gore said, "have been placed at serious risk by the unprecedented claims of the administration to a truly breathtaking expansion of executive power."

"As we begin this new year," he continued, "the executive branch of our government has been caught eavesdropping on huge numbers of American citizens and has brazenly declared that it has the unilateral right to continue without regard to the established law enacted by Congress to prevent such abuses."

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