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Our Day in Court against the NSA Program

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Almost eight months after we filed our challenge to the NSA Warrantless Surveillance Program, we finally had our day in court: a hearing and oral argument in front of Judge Gerard Lynch last Tuesday (September 5th). I'm always reluctant to say too much about how I thought an argument went; most judges are very good asking their questions without revealing their intentions. Making predictions about rulings is a fool's game, but here are some initial impressions.

The argument started off with Judge Lynch--a Columbia law professor, and a pretty brilliant guy by all accounts--asking questions from the start, instead of the usual statements from counsel, and ended two hours and forty minutes later. The judge said at the outset that he had held onto the case for months because he thought Congress might clarify or transform the issues by passing new legislation. After eight months, the judge was very prepared. He peppered us with detailed questions, some about legal abstractions (might FISA allow warrantless surveillance under some circumstances?) and some about wild hypotheticals (if the government was lying when it admitted there was such a program, do you have any legal claim remaining?) in the best law school tradition.

Lynch pressed the government attorney on whether there were factual disputes about what the administration has publicly admitted about the program. Among other things, Lynch wanted to know whether there was any disagreement as to whether the program covered an area that would otherwise be regulated by FISA. Remarkably, the government said that admin officials had not conceded that:

THE COURT: You're saying I should assume for purposes of this case that whatever it is that the government is doing would violate FISA, even though you can't confirm or deny that that is in fact so?

[GOVERNMENT ATTORNEY:] No. I'm saying, precisely because I can't confirm or deny the specific methods utilized under the [NSA Program], you shouldn't make any assumptions about that.

Yet another Alice-in-Wonderland moment in this case! Usually in litigation, when you can't answer factual allegations you lose by default; here, the government argues they should win by default instead. Well, the attorneys could neither confirm or deny it, but, as we noted in our briefs, the Attorney General admitted nine months ago that the Program stood squarely in legal territory covered by FISA:

"Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides--requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow--there is--unless otherwise authorized by statute or by Congress. That's what the law requires."

(That's Alberto Gonzales speaking at a Press Briefing on Dec. 19, 2005.) At the end of nearly three hours of questions, Judge Lynch complimented all of us for discussing the law with "dispassion," which made me think we should have been more emotional about the impact this has had on our office. The revelation of the Program in December really sent a shock wave through our office. So many of our clients were detained based on no evidence or even suspicion of wrongdoing, solely in order to be interrogated (often under brutal conditions), and it was hard to escape the feeling that our privileged conversations with them, likely overheard by the government, had functioned as an extension of the interrogation process. Judge Lynch left many questions open, and my sense is that his progress towards a final ruling may take place in stages. But he could surprise all of us.

Meanwhile, the various bills to cut off our suit by transferring it to a secret court in D.C. have been slowly moving forward. I haven't yet seen this week's working drafts of the Specter bill, which we last commented on here. But the previous version was a disaster. There were better proposals out there, one of them cosponsored by Senator Specter himself.

Specter's bill seems to be moving towards a floor vote in the Senate, although competing measures have been sent out of committee as well. Hopefully the House, where members have a traditionally greater insecurity over their seats in an election like this one, will be the body that halts the rash progress of an unwise bill this time around. (Call your representatives this week about it!) Recall that FISA took about four years of debate to reach its final form.

This week saw the public release of "unclassified talking points" the administration has circulated in support of the Program. (Are there "classified" talking points? If so, who would you be talking to?) They claim that "[c]urrent law is not agile enough to handle the threat posed by sophisticated international terrorist organizations." That's an odd claim, given that the administration used FISA warrants to carry out surveillance on the contacts of the British airline bomb plotters in the frantic last week before the arrests. The talking points also make a lot of the notion that FISA is outdated. The administration has not offered empirical proof of that, but even if it were true, it is merely an argument to amend the law, not break it.

When his bill was stymied in the Senate, the New York Times reported that "Specter grumbled that without his legislation the White House would continue its domestic wiretapping program virtually unchecked by the courts." With all due respect, Sen. Specter is simply wrong on the facts. Our CCR case has had full briefing and an oral argument. The ACLU won its spying case at the District level and is currently on appeal. There have also been partial decisions rendered in the case EFF brought against AT&T, and the Al Haramain case in Oregon, where the judge issued a cautious but favorable opinion on state secrets privilege last week. All of these constitute the very check by the courts that Sen. Specter claims will only occur if the rest of Congress accepts his "deal" with the administration. The judges, human rights attorneys and plaintiffs in these cases are not asking for legislative interference. In fact, the party most concerned about changing the law is the defendant accused of breaking it: President George Bush.

--September 13, 2006

(BTW, September 11, 2006 was the 100th anniversary of Gandhi's satyagraha movement.)