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Washington-Believing herself to be a possible target of the National Security Agency’s controversial electronic surveillance program, criminal defense attorney Nancy Hollander unhappily took a three-day trip to the Middle East to secure documents that she otherwise would have obtained electronically. “I couldn’t just call and say, ‘Send me this document,’” said the past president of the National Association of Criminal Defense Lawyers (NACDL) and a partner in Freedman Boyd Daniels Hollander & Goldberg in Albuquerque, N.M. “A three-day trip to the West Bank was not my idea of fun.” Hollander, who represents a number of clients accused of terrorism-related activities, said that the recent disclosures about the NSA’s wiretapping and data-mining efforts have led her to abandon the use of telephones, e-mails and faxes in communicating with those clients, other lawyers, experts and witnesses in the alleged terrorism cases in order to protect client confidences and her work product. That interference with the ability to represent their clients zealously is a major reason why Hollander and the NACDL have joined in the American Civil Liberties Union’s (ACLU) constitutional and statutory challenge to the NSA’s surveillance program. The ACLU lawsuit, scheduled to get its first court airing on June 12, is one of two suits directly targeting the NSA. The Center for Constitutional Rights (CCR) also has sued the NSA on similar grounds on behalf of itself and its own legal staff who represent clients generally fitting official public descriptions of the surveillance targets. Instead of targeting the NSA, the Electronic Frontier Foundation (EFF) has filed a class action against AT&T Inc., charging that the communications giant has violated the Constitution and federal wiretap and privacy laws by conducting warrantless searches and seizures of domestic and international communications of Americans on behalf of the federal government. And, at least four class actions, seeking billions of dollars in damages, also have been filed against telephone companies in the wake of reported disclosures that they allegedly cooperated in the government’s data-mining of long-distance and local phone records. More such suits can be expected, predicted some legal experts, because a key statute allegedly violated authorizes a minimum of $1,000 in damages per violation. Despite the seriousness or even the potential validity of the claims against the NSA and the phone companies, all of the lawsuits may be stopped cold, said some scholars, if the government-as it has already in the EFF suit and has indicated it will in the ACLU suit-asserts the military and state secrets privilege. That privilege is a common law evidentiary rule that allows the government to withhold information from discovery when disclosure would harm national security interests. The federal district judge in the EFF suit against AT&T will hear arguments on June 23 on motions by AT&T and the government to dismiss the class action. Lawyers for plaintiffs in all of the other suits said they too are bracing for the government to assert the state secrets privilege and to move to dismiss their cases. “It’s the most powerful privilege available to the government,” said William Weaver, professor of law and political science at the University of Texas at El Paso. “It is an absolute privilege, not a qualified privilege. It won’t be weighed against any litigant’s need for information. There’s no fairness principle involved. “National security is almost a talismanic term,” said Weaver whose scholarly research is in the area of government secrecy. “Courts run away from it. It’s very disheartening.” Although all of the NSA-related cases involve precedents and statutes that have been on the books for some time, the litigation raises both a constitutional question that hasn’t been answered for decades, and a question about the breadth of the state secrets privilege that the U.S. Supreme Court hasn’t faced in many years, said Ann Beeson, lead counsel on the ACLU suit against the NSA. “The Supreme Court hasn’t ruled on the constitutionality of a domestic surveillance program since [1972] and it left open the specific question we ask in our case and that’s asked in the CCR case,” she said. “Also, the statutory world has changed since then. There wasn’t FISA [Foreign Intelligence Surveillance Act]. And, in my view, circuit courts have been all over the map on the state secrets privilege. “Ultimately these cases may resolve some very important issues that will impact not just these lawsuits but other cases raising privacy rights in the context of national security.” Calling charges Although their suits are separate, ACLU and CCR attorneys have been coordinating efforts, according to David Cole of Georgetown University Law Center, a CCR cooperating attorney. Amicus briefs are being jointly filed in the cases and have come from major civil rights groups, business leaders of companies with both domestic and international operations, and 72 members of Congress. The two NSA suits make essentially four claims. First, the NSA surveillance program violates the First Amendment by compromising free speech rights, including impairing the ability of attorneys to freely provide legal advice. It also violates the Fourth Amendment by engaging in warrantless searches and seizures. It violates separation of powers principles because it was authorized by President Bush in excess of his executive authority and contrary to limits imposed by Congress. Finally, it runs afoul of the Administrative Procedures Act because it exceeds the authority and limits imposed by FISA and Title III of the Omnibus Crime Control and Safe Streets Act. The constitutional and statutory questions are entwined. In 1972, the Supreme Court held that the Fourth Amendment does not permit warrantless, domestic intelligence surveillance. But it expressly declined to rule on the question of the president’s authority to conduct foreign intelligence surveillance without a warrant, even within the United States. U.S. v. U.S. District Court, 407 U.S. 297. Cole, Beeson and their supporters believe that Congress answered that question in 1978 when it enacted FISA. FISA amends Title III and sets out procedures that, it states, “shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.” As long as the communication has a domestic connection, either FISA or Title III (federal wiretap law) applies, said Patricia Bellia of the University of Notre Dame Law School, who teaches Internet law and electronic surveillance law. “There’s no gap in the law here that domestic communications can fall outside of,” said Bellia. “That’s the way everyone has always understood the relationship between those two statutes.” To accept the government’s view of the legality of the NSA program, she added, a court would have to believe either that Congress’ Authorization on the Use of Military Force impliedly amended FISA or that the president has constitutional authority to conduct the surveillance outside of the two statutes. At press time, the government had asked for more time to file its response to the ACLU and CCR suits. But in its motion to intervene in the EFF suit against AT&T and to assert the state secrets privilege, the government contends that after the 1972 Supreme Court decision, each of three circuit courts of appeals to consider the unanswered question in that decision has concluded that the president has inherent authority to conduct warrantless surveillance in the foreign intelligence context. Robert Turner of the University of Virginia School of Law agrees, explaining, “All judicial precedent is on the president’s side. We have a hierarchy of laws in this country and at the top is the U.S. Constitution. FISA is almost irrelevant here. When a statute comes into conflict with a provision of the Constitution, it is going to lose.” Whether the courts even get to those issues, of course, depends on how they handle the state secrets privilege, the standing challenges and perhaps even a government claim that this is a political question from which the judiciary should abstain, said CCR’s Cole. The EFF class action against AT&T and the recent class actions against Verizon and BellSouth Corp. as well as AT&T, also contain claims based on federal communications laws. Those suits have at their core the Stored Communications Act, which prohibits a provider of electronic communication service from divulging to the government any “record or other information pertaining to a subscriber to or customer of such service,” unless the disclosure falls within a statutory exception. “I’ve looked at all of the exceptions and it doesn’t look like any of them apply,” said Peter Swire of Ohio State University Michael E. Moritz College of Law. “If the [news] stories are accurate, then it’s hard to see a legal basis for the NSA receiving the call detail records.” Last week, Verizon and BellSouth, which have refused to comment on the lawsuits, issued statements denying that the government had asked for phone records or that they had provided them. In its motion to dismiss the EFF lawsuit, AT&T said: “If these allegations were true, it is the government and not AT&T that would be obliged to answer for the lawfulness of the challenged intelligence activities: Both Congress and the courts have conferred blanket immunity from suit on providers of communications services who respond to apparently lawful requests for national security assistance from the federal government. Gary Mason of The Mason Law Firm in Washington, which filed three class actions against the three phone companies, said he was “skeptical” of their denials. He also said he expected the government to assert the state secrets privilege in all of the cases. “I think these lawsuits by telephone customers are much narrower than the suits against the NSA and can be litigated without implicating state secrets,” he said. “Either [the phone companies] were doing this or they weren’t-yes or no. The answer doesn’t in any way jeopardize our security.” Not surprisingly, all of the attorneys contend that their cases can go forward without implicating state secrets. Regardless, it’s going to be a problem, said Mark Zaid of Washington’s Krieger & Zaid, who specializes in litigation against the government. “In a normal state secrets case, especially where the government is a nonparty, the information subject to the privilege would be excluded if the privilege is held to be appropriate, and the judge would have to assess if the case could go forward without the privileged information,” he said. “Right now the federal judiciary has demonstrated across the board an unwillingness or inability to deal with state secrets cases.” Weaver of the University of Texas agreed, saying he would “bet every last dime” in his retirement account that the privilege will prevail where asserted.

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