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With Congress paralyzed by deep divisions over the legitimacy of the National Security Agency’s domestic surveillance scheme, critics are hoping an alternate body might invalidate the program: the federal courts. It’s hardly a given, however, that the courts will ever adjudicate the issue. That’s because the initial courtroom skirmishes, now in their opening stages, are focused on first determining whether anyone even has the right to sue. Since the program is classified, those affected by the government’s actions may never know they have a potential claim. And plaintiffs who don’t know whether they’ve been targeted, but argue the program’s very existence chills their free-speech rights, carry a heavy legal burden to show standing. The result could be a domestic spying operation that involves unconstitutional surveillance of U.S. citizens but gets a free pass in court. “The case law on standing has gotten tougher, tougher than it used to be,” notes William Banks, a Syracuse University law professor who specializes in national security law. “You can’t just demonstrate by conjecture that your interests have been injured.” Last month two civil lawsuits challenging the program were filed, one by the American Civil Liberties Union in Detroit; the other by the Center for Constitutional Rights in New York. Both say the NSA is violating the plaintiffs’ First Amendment free-speech rights, their Fourth Amendment privacy rights, and Congress’ constitutional right to check the power of the executive branch. The government has until the middle of next month to respond.
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But the dozen or so plaintiffs — lawyers with overseas clients, the writer Christopher Hitchens, and the Council on American-Islamic Relations, among others — are faced with a daunting problem: The nature of a secret spying program is that nobody knows for sure on whom the government is spying. Attorneys for both the center and the ACLU argue that their plaintiffs have legitimate reasons to fear they have been targeted by the NSA program, and this fear alone has created a “chilling effect” whose impact is “direct and real.” Still, the standard for proving injury is high and comes from a doctrine that goes back to the first chief justice, John Jay, who refused to provide diplomatic guidance to President George Washington, saying the Court could act only in the context of a real case or controversy. “The court won’t decide whether your First Amendment rights have been affected until they decide whether you have a case,” Banks says. “I don’t see these at all as slam-dunks.” But there’s a second set of cases, criminal ones, in which the standing issue may be inherently easier to resolve. Ever since The New York Times revealed the existence of the wiretapping program in December, defense attorneys across the country have been reviewing their cases and, in several instances, filing motions with the courts insisting that the government disclose whether any information from the program was used to build a case against their clients. If you can prove that, the argument goes, and then prove that the Bush program is unconstitutional and that reading someone’s e-mail or tapping his phone without a warrant violated his Fourth Amendment rights, then terrorists’ convictions will start falling like so many dominoes. That, of course, is a big if. “There’s no evidence yet that the government has disclosed that they have used any of this evidence in a criminal case,” notes David Barron, a Harvard Law School professor. “You have to prove that they did. To say proving that is a piece of cake, you’ve got to be kidding yourself.” Adds Barron: “The government will contest that like crazy.” So far, the White House has revealed very little about the program; neither the number of people surveilled nor the quality of the intelligence produced by the surveillance has been discussed with more than a few members of Congress, if that. And that’s despite a vigorous public relations offensive, including frequent trips by Attorney General Alberto Gonzales and Gen. Michael Hayden, the deputy director of national intelligence, up to the Hill and their appearances on television talk shows to defend the program’s constitutionality. “We know nothing about the program other than what we read in the newspapers,” complained Sen. Dianne Feinstein (D-Calif.) during a Feb. 6 Senate Judiciary Committee hearing in which Gonzales was questioned for seven hours. DEMANDING DISCLOSURE Still, that hasn’t stopped numerous defense attorneys from trying to find out whether the program has included their clients. “Please advise whether the Bush administration has authorized the interception of Sami Latchin’s communications without a court order,” Mary Judge, a Chicago public defender, wrote to Assistant U.S. Attorney James Conway on Jan. 3. Latchin, whose trial is set to start in October, is accused of being an Iraqi sleeper agent in the United States. A naturalized U.S. citizen, he is charged with lying on his application for citizenship by failing to disclose he had worked for the Iraqi intelligence service and was a member of Iraq’s Baath Party. When Judge heard nothing from Conway, she sent a follow-up note a month later. Conway wrote back on Feb. 7 with a one-sentence reply: “The government will not respond at this time to the inquiries made in your letter dated January 3, 2006.” Judge says she’s weighing her next move, which could be a motion to compel disclosure. “If they have a voice recording of our client, we’re entitled to know. It’s definitely [a possible] �Poisonous Tree’ theory,” she says, referring to the criminal law doctrine that states that information discovered through an illegal search taints any subsequent evidence found as a result of that search. But Judge says the information could be useful in a trial even if she chose not to challenge the wiretap on constitutional grounds: “You could give the information to the jury as they assess the entire case. It’s part of the investigation, it’s relevant, it’s part of the methods employed, it’s part of our defense.” In Virginia, defense attorney David Smith filed a motion earlier this month to vacate the conviction of Iyman Faris, who was convicted in 2003 of casing the Brooklyn Bridge for al Qaeda to determine if it could be destroyed by severing its cables. Smith filed a so-called Section 2255 motion (which allows a judge to vacate a sentence when there are constitutional violations), alleging ineffective counsel. But after newspaper accounts mentioned Faris as a possible surveillance subject, Smith said he also threw a claim based on that into the motion. “The NSA issue was icing on the cake,” he says. On Feb. 8, U.S. District Judge Leonie Brinkema ordered the government to respond to Smith’s motion, noting “the potentially weighty issues raised in the defendant’s motion,” including the NSA wiretap issue. “Challenges under the criminal system are a more serious challenge for the administration,” says George Washington University law professor Jonathan Turley. “There’s a whole different set of rules that move cases along more quickly and put the government in its worst position legally.” Turley has also raised the issue of NSA wiretaps on behalf of his own client, Ali al-Tamimi, a computational biologist serving a life sentence for inciting his followers to fight against the United States overseas. Turley took over the al-Tamimi case after al-Tamimi was convicted in district court a year ago, and was preparing al-Tamimi’s appeal when the surveillance story broke. In January the U.S. Court of Appeals for the 4th Circuit granted Turley’s motion to halt all arguments. He said he plans to file a motion shortly to remand the case back to Brinkema, who he hopes will determine whether an NSA wiretap was used. “What the government cannot do is mislead or lie about any intercepts,” he says. But it can, in theory, refuse to answer. What would happen after that is unclear. A judge could order the government to respond or could dismiss the defendant’s claim. The government may confront that issue as early as next month, when it responds to a Jan. 20 motion by Albany, N.Y., lawyer Terence Kindlon, whose client, Yassin Aref, is accused of trying to sell missile launchers to terrorists. “[B]ecause government officials have said that Yassin Aref was a subject of the NSA warrantless surveillance program, and because that surveillance was clearly illegal . . . all evidence obtained therefrom must be suppressed,” Kindlon wrote in an affidavit filed a few days after a New York Times piece, citing anonymous sources, said the spying program might have prompted the FBI to target Aref. STAND AND DELIVER Right now there are proposed congressional remedies that could either provide a clear avenue for federal court review or legislate a mandatory review of the program by the Foreign Intelligence Surveillance Act court, which rules on electronic-surveillance warrants. But in the meantime, not everyone is convinced the two civil lawsuits are destined to be dismissed on the grounds that the plaintiffs don’t have a viable injury, especially attorneys for the ACLU and the Center for Constitutional Rights. “You don’t have to prove you’ve been spied on,” argues Ann Beeson, the ACLU’s lead attorney on the case. “You have to prove your First Amendment rights have been injured.” Beeson adds that Nancy Hollander, a former president of the National Association of Criminal Defense Lawyers, which is one of the plaintiffs in the ACLU case, told her she no longer holds certain conversations with her Middle Eastern clients by phone and in one case is traveling to see the client instead. “That’s real harm,” Beeson says. In the center’s case, the plaintiffs are the center itself and four of its lawyers. The center coordinates all the Guant�namo Bay litigation and is handling the class action litigation for non-U.S. citizens detained in U.S. jails after 9/11. “We know the program is going on, and we fit the clear definition of the kinds of people we know whose calls are being intercepted,” says Bill Goodman, the center’s legal director. “So any sensible legal director in my position would be forced to take extraordinary measures. “We can’t trust any call with any client since the program started, so we have to go back over all our calls, which is a huge amount of work for a little organization. It’s a burden,” he adds. “That’s how we’re damaged. That’s why we have standing.”

T.R. Goldman can be contacted at [email protected].

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