NSA Eavesdropping Cases Now Being Fought Out in the Courts
Counterterrorism blog
By Victor Comras
Press revelations last December that the NSA was engaged in limited domestic eavesdropping set off a landslide of protests and congressional concerns over the legality of such activities. These issues are now also well entangled in our courts. Numerous legal challenges are underway, including to criminal cases where information collected by the NSA might have been used to help convict those alleged to have engaged in, or supported, terrorism. A number of class actions have also been filed against the phone companies for allegedly providing telephone logs for government data mining and surveillance use.
The Justice Department filed responses May 26th to two major cases brought on behalf of a variety of clients by the ACLU and the Center for Constitutional Rights which directly challenged the NSA’s right to continue with such activities. They argued that defending these cases would require disclosure of state secrets and that this would be contrary to national security interests. Key to their argument is the Supreme Court Ruling in the 1953 case, United States v. Reynolds. In that case the court recognized the so-called “States Secrets Privilege.” This “privilege” was invoked quite sparingly prior to 9/11. But since then, it has been successfully invoked more than 23 times, including to block a recent case against the CIA involving the “rendition” of Khalid El-Masri
In another lawsuit brought back in 2002 by Center for Constitutional Rights on behalf of several Muslims clients who were rounded up, detained and deported following the 9/11 attack, US Magistrate Steven Gold entered an order May 30th requiring the government to indicate whether they were aware of the government monitoring conversations between the Sept. 11 detainees and their attorneys. The government is expected to appeal this ruling. The Justice Department maintains that its lawyers had not seen any such communications, but they could not rule out that others at the Justice Department were aware of such communications. They indicated that such information would be classified and not available for presentation to the court.
One of the more serious court challenges arising from the NSA program was launched earlier this year by Oregon attorney Thomas Nelson who represented Soliman al-Buthe and the Ashland Oregon branch of Al Haramain Islamic Foundation. The now defunct charity was linked to the Saudi Al Haramain Foundation which was designated by the US Treasury Department and the UN for its support of al Qaeda, and its assets were frozen.
According to legal papers filed by Nelson, the case against his clients was based on information derived from illegal NSA eavesdropping andt evidence derived therefrom should be surpressed. Nelson claims he has physical evidence to prove that these conversations were tapped as part of the NSA program. This includes allegations that the government used logs of conversations between Soliman al Buthe and other Haramain personnel and their lawyers. The logs were allegedly obtained without a warrant. It appears that the FBI inadvertently released these classified documents to Buthi and his attorneys. While the lawyers subsequently returned the documents to the FBI, Al Buthi who now resides overseas, retained his copy. The Government has asked the court to turn back to the government any classified material associated with Nelson's complaint.
Several lawsuits have also been filed to bar AT&T, Verizon, Bell South and other phone companies from turning over customer phone records for government scrutiny in the absence of any court oversight. The Justice Department has argued that all of these cases should also be dismissed.
It is said that "bad cases can make bad law." And the outcome of these cases are not likely to advance our sense of justice or our security. Let's hope that the jurisprudence that results from these cases just doesn't do too much damage to either. |
