Continuing from my earlier post about the government’s argument.

Ann Beeson focused the ACLU’s argument on a narrow legal issue: must the President abide by FISA? She highlighted how a failure to decide on this issue would leave the President to follow/not follow the law as he sees fit. And regarding mootness - she noted that if one voluntarily ceases illegal activity (in this case, going outside FISA), that does not make the illegality moot. And to address the questions of standing, she emphasized how three other Courts found standing to hear cases about the program.

Judge Gibbons noted that the harm done to the Plaintiff’s resulted from decisions made by the clients – to which Ms. Beeson remarked that it was a professional and ethical responsibility of the Plaintiffs that lead them to change their behavior – professionally they had no choice precisely because of the TSP. Judge Gibbons questioned the allegation that the Plaintiff’s were talking to terrorists or individuals associated with Al Qaeda. Ann responded by telling the specific stories of two defense lawyer who are plaintiffs with the ACLU; individuals who represent those accused of terrorist related crimes. She also describe the situation of a plaintiff who is a freelance journalist who reports on the Middle East.

Judge Gilman asked for thoughts on the government’s reliance on Laird, to which Ms. Beeson responded that the Plaintiff’s have suffered concrete harm - they not only had to stop communicating but also had to incur costs. Plus, the government has shown no evidence disputing that the Plaintiff’s have suffered harm.

Judge Gilman asked if they should consider holding a future evidentiary hearing, yet the ACLU noted it’s request for summary judgment because both sides have had a chance to present evidence.

Ms. Beeson continued with why the Court can easily affirm Judge Taylor’s decision – in short by saying that FISA provides the exclusive means for domestic surveillance and that the President has no authority outside of FISA. She raised the President’s power under FISA to conduct warrant-less surveillance 15 days after the start of a war, and up to 72 hours before getting FISA approval - and then noted how the TSP has continued despite FISA for over four years, despite the specific laws put in place by Congress to address such war-time surveillance.

As Ms. Beeson summed things up,

“Now it’s for the Court to check the Executive branch. Congress did its part.”

Judges Alice Batchelder, Ronald Gilman and Julia Gibbons presided over a full standing-room only court of over 100 people. Mr. Greg Garre, Deputy Solicitor General, argued for the government and Ann Beeson, ACLU’s Associate Legal Director and Director of the National Security and Human Rights programs argued for the lawyer, journalist, and researcher plaintiffs.

The government’s argument was two-fold:
1) jurisdictional issues should sway the Court. Namely: a) that the Plaintiff’s lack standing because they couldn’t prove they were the subject of surveillance and thereby suffered as a result and b) that the entire case was now moot since the TSP was now subject to FISA
2) if the Court didn’t buy the above, then it should agree that the state secrets protection applies and accordingly reverse Taylor’s ruling.

This was the extent of the government’s oral argument - Mr. Garre didn’t address the merits of the case nor Taylor’s finding that the Terrorist Surveillance Program was unconstitutional and needed to be ceased.

Mr. Garre focused most of his argument on how the ACLU’s 1st Amendment argument (re: Plaintiff’s having to change their behavior because of the program) was based on merely the fear of being subject to surveillance - not actual proof of surveillance activity, which could not be disclosed because of state secrets. Judge Gibbons asked for clarification on how other claims of damages fit in, like the damage to research? The government claimed that all other injuries resulted from the fear (not proof) of surveillance, and therefore were irrelevant.

There was a lot of discussion around the applicability of Laird v. Tatum which is something I’m going to let my fellow bloggers write about since I’m not a lawyer. Or you can read the legal brief.

Judge Gibbons asked if this set of Plaintiff’s didn’t have standing; who would. The government clarified their position that the plaintiff must be an actual subject of surveillance in order to have the 4th Amendment argument apply, and since the Plaintiff’s in this case have no proof of being surveilled, the change in their actions based on presumption is not sufficient.

With regards to the moot argument, Judge Gilman noted that the government volunteered to put TSP under FISA, and could similarly opt-out anytime. Judge Batchelder also noted that it was odd that the government voluntarily went to the FISA Court. Judge Gilman pressed for clarification that the government’s position was that they could abandon FISA anytime. Mr. Garre responded, “Absolutely true your honor”, and Judge Gibbons remarked that this could occur in the future should the Executive branch feel the need to conduct surveillance beyond the parameters set by FISA.

On the topic of state secrets, the government claimed that in order to establish whether or not a search was reasonable, you’d have to know details about the search, such as what communications were intercepted, how it was intercepted, and what technology was used. And – you guessed it – that’s a matter of state secrets.

Judge Gilman interestingly remarked that they don’t have to reach 1st/4th Amendment issues if they stop at FISA. Could this perchance indicate a leaning?

In the Government’s final comments before the ACLU took the floor, Mr. Garre emphasized that this case must be viewed with respect to the constitutionality of the President’s powers in wartime – and that it was not possible to resolve the FISA/Separation of Powers issues without getting into state secrets.

More to come…

As ACLU attorneys confront a President’s ungrounded assertion that he may eavesdrop on the private communications of American citizens without a warrant and in the face of an express statutory prohibition - and as these events unfold in the shadow of one illegal and immoral war and quite possibly on the brink of another - I am haunted by echoes both personal and historical.

During the course of my prosecution for leaking the “Pentagon Papers” to the New York Times and other newspapers, I learned that I had been the victim of warrantless electronic surveillance by the federal government. In fact, so egregious was the government’s misconduct in unlawfully prying into my private life that the entire prosecution collapsed under its weight. (It was this surveillance of me and other prominent war critics, journalists, and government officials that led to Congress’s subsequent enactment of the Foreign Intelligence Surveillance Act - the very statute that this President has so shamelessly violated.) I and some of my attorneys - who had also been unlawfully overheard by the federal government - then brought suit against Attorney General John Mitchell and others, challenging their involvement in the rampant and illegal invasions of our privacy.

Rather than defend the indefensible, the Executive Branch moved to dismiss our suit on the basis of the “state secrets privilege” - the very same defense that Alberto Gonzales’s deputies have invoked to fend off the ACLU’s challenges to illegal NSA eavesdropping and CIA kidnapping, and to silence FBI whistleblower Sibel Edmonds. The notion that the executive branch may brazenly violate the law, and then prevent any accountability for its wrongdoing by insisting that even federal judges are not capable of adjudicating critical constitutional disputes without jeopardizing national security, was offensive and ludicrous then, and is simply inexcusable now, when we have such an ample historical record of the government’s capacity for and tendency towards deceit. But as long as federal judges - who are themselves constitutional officers - continue to defer to the government’s extravagant and dishonest security claims, the government will continue to employ this undemocratic tool to avoid accountability and embarrassment.

The dispute over publication of the Pentagon Papers should serve as a cautionary tale - and a useful guide. When I provided the classified papers to the New York Times and the Washington Post, the Nixon White House took the unprecedented step of seeking to prevent their publication. The Times and Post, to their historic credit, fought back, and the cases made their way to the Supreme Court. In the meantime, seventeen other newspapers defied the Administration’s warnings by publishing the papers, a wave of institutional civil disobedience without parallel in any country.

In the Supreme Court, the Nixon Administration offered the same argument that we hear today: that once the Executive Branch has determined that national security is at issue, courts should step aside:

In the present cases high government officials have explained the reasons for their concern; that judgment is enough to support the Executive Branch’s conclusion, reflected in the top secret classification of the documents and in the in camera evidence, that disclosure would pose the threat of serious injury to the national security.

The Supreme Court was unpersuaded. The four newspapers that had been enjoined — the Times, the Post, the Boston Globe, and the St. Louis Post-Dispatch — resumed publication of the Pentagon Papers, along with many others. Some twenty years after the release of the papers, former Solicitor General Erwin Griswold, who had argued the case on behalf of the Administration, conceded: “I have never seen any trace of a threat to the national security from the publication. Indeed, I have never seen it even suggested that there was such a threat.”

In yet another echo, the current dispute over the President’s claim that he is above the law originated with leaks to The New York Times - this time anonymous. It was The Times that revealed that the President had been operating a secret “program” of electronic eavesdropping outside the law. For this, The Times was accused of “treason” by the Administration’s proxies, and the Department of Justice announced a criminal probe not of the President’s blatant lawbreaking, but of the patriotic leaking that led to its exposure. We should applaud the civil servants within the national security bureaucracy who brought this constitutional crisis to light. But they have not done enough. The President’s lawbreaking could not have been accomplished without the obedient silence of hundreds of insiders who knew full well that our system of laws was being subverted by an unhinged Executive Branch. These people should have come forward sooner, and they should now urgently consider coming forward to testify publicly - and with documents.

It took me too long to recognize that the secrecy agreements I had signed frequently conflicted with my oath to uphold the Constitution. I’m not proud that it took me years of war to awaken me to the higher loyalties owed by every government official to the rule of law, to our fellow citizens, and, explicitly, to the Constitution. I hope others will learn that lesson sooner. With the ACLU’s legal support, I am now actively advocating whistleblowing in the national interest. It is a courageous, patriotic, and effective way to serve our country, and it may yet lead us out of our national crisis.

When I first read the 1978 Foreign Intelligence Surveillance Act, I thought to myself “This can’t be constitutional … they don’t really do it!”

I‘ve never had a FISA case myself … that I know of. … But FISA set the course for an astonishing legislative assault on privacy rights versus government intrusion and surveillance. Secret courts! Secret affidavits! Secret warrants! Surely this could not pass constitutional scrutiny. But it did.

What civil libertarians saw as patently unconstitutional, legislators, judges and the Executive accepted as uncontroversial. After all, if you are not a terrorist, what’s to fear? National security trumps personal security.

But, as the president says, “9/11 changed all that.” The Executive concluded even the minimal strictures of FISA were trumped by the “commander-in-chief” power – not even the FISA court need be consulted to authorize the Executive to wiretap those it—secretly—decided had ties to terrorists. Congress went along when it expanded executive power at the expense of the Fourth Amendment with the Patriot Act in 2001.

The Fourth Amendment stands between free citizens and a police state, just ask those Japanese-Americans who were seized and imprisoned in WWII. Protection of our Fourth Amendment rights took off in the 60s with the extension of the exclusionary rule to the States. Searches, seizures, bugs or wiretaps carried out without a warrant or reasonable, exigent circumstances no longer yielded admissible evidence to support criminal convictions.

My first contact with the issue was as a law student in 1965, when Klan members unsuccessfully sought to suppress the seizure of their robes, hoods, guns and whips in their trial for killing Lemuel Penn, a DC educator and Army Reserve officer, as he drove through Georgia.

The 60s and 70s saw judicial increases in protection of personal security from governmental intrusion, through court decisions that were subject to withering public and political attacks, accusing judges of coddling criminals and releasing them on mere technicalities. It was a short-lived euphoria for civil libertarians.

The war on drugs turned the tide. Maybe it was the Omnibus Crime Control and Safe Streets Act in 1968—expanding the scope of wiretaps and bugs—that marked the initial downward slide of Fourth Amendment rights. Certainly the learning curve of law enforcement officers didn’t help, as they grew accustomed to falsely testifying that what they seized was in plain view, or that the exigent circumstances required them to search without a warrant.

The endless war on drugs not only eroded this fundamental protection citizens have against unwarranted government intrusion, but also fueled the massive law enforcement-prison industry that makes us a world leader in the number of disenfranchised citizens under the continual control of government supervisors.

January 31, 2007, marks a landmark day in Fourth Amendment jurisprudence. In ACLU v. NSA, civil libertarians, who have retreated to possibly the last trench of Fourth Amendment defense, will argue that NSA surveillance based solely on executive authorization is illegal even under the minimal requirements of FISA.

The Act I had thought so repugnant to the Fourth Amendment has now become a basis for protecting what little is left of it.

The Sixth Circuit decision may well set the course for the future. Will our citizens’ rights to be free from government start on the road back to respect? Or will the war on terror drive the final nail into the coffin of the Fourth Amendment, bury its protection in the name of national security, and lead us down the perilous road to trials of “terrorists” based on secret wiretaps, bugs and break-ins, fueling a new law enforcement-big prison industry, rivaling the monster created by the war on drugs?

Free citizens? From what?

David Broiles is Vice President-Legal, ACLU of Texas

1/30/07 – Arrival in Cincinnati

We mushed southward under an ice-crystal hazed sun frozen in place by the single digit temps. The rural Ohio landscape imitated a frozen tundra, complete with drifts of snow and the grey-brown color palette of dormant vegetation.

We were headed from Detroit to Cincinnati to witness, more than anything, a moment in history. As a third year law student, I estimated that by now I have read hundreds of cases. I wondered if I would now be witnessing a case which may be read by future law students years from now.

The NSA wiretapping case argued before the 6th circuit is the highest judicial proceeding I would witness to date. It is a major battle, between titanic players in a gladiator-type arena. The ACLU and the US Government would battle before three of the 6th Circuit judges – Gilman, Batchelder, and Gibbons. My fellow interns and I were to be mere flies on the wall, straining to keep up, understand, and helpless to contribute with our faltering legal skills.

We learn and learn and learn, yet we still have so many questions, miss so many nuances, and still get tripped up be so much procedure. It is nerve wracking to see these lawyers seemingly so calm and good at what they do. I wonder how long it will take for me to feel that way…

The word I heard most this morning - kafkaesque.
For those who may not be familiar with Kafka’s novel The Trial, I highly recommend both it and the film adaptation by Orson Welles. The story is about a man arrested and put on trial for an unspecified crime that he cannot get details about because the system doesn’t allow it.

Fresh from breakfast with the plaintiffs, legal team and other ACLU folks here in Cincinnati, I am struck by how many times the word “Kafkaesque” came up in conversation about the government’s legal practices around terrorism cases. Why? Because the government’s lawyers have taken to claiming that their evidence is so secret that only the government’s team and the judges can see it, not the opposing party.

Like me you’re likely thinking, really? Well, Courts have in the past allowed such secret evidence to prove an existing relationship that’s tangential to the actual case at hand. So, you could introduce files to prove a client-attorney or doctor-patient relationship.

But recently there has been a growing trend of the Justice Department’s use of a ‘terrorist cases are special’ doctrine, where parties opposing the government lawyers have no rights to the evidence because it’s “classified”.

I understand wanting to keep a client’s files private when proving a relationship to a witness. But that’s different than presenting evidence on someone’s guilt/innocence or in today’s hearing, the mootness of the case (i.e. whether or not the hearing should continue). For ACLU v. NSA, the Government introduced evidence bearing on one of the key points to be argued, yet that evidence has only been made available to the judges

How can one side effectively argue when it doesn’t have all the evidence? For those of you who may be learning of this for the first time – know that this practice is also used in criminal cases, where a defendant is tried for terrorism, but is not shown the evidence against him because it is “secret”. It appears that for anything, if it’s related to terrorism, then it’s a state secret – or as the government would like to have it, anything goes.

So where does this leave us? For now, stay tuned, watch the growing interest from Congress (covered by blogs like 27B Stroke6) and take action!

James Bamford, one of the plaintiffs in the ACLU v. NSA case, authored an op-ed in today’s New York Times, talking about how historically, even Presidents were held accountable when they broke the law. As Bamford writes:

Laws are broken, the federal government investigates, and the individuals involved — even if they’re presidents — are tried and, if found guilty, punished. That is the way it is supposed to work under our system of government. But not this time.

Last Aug. 17, Judge Anna Diggs Taylor of the United States District Court in Detroit issued her ruling in the A.C.L.U. case. The president, she wrote, had “undisputedly violated” not only the First and Fourth Amendments of the Constitution, but also statutory law, the Foreign Intelligence Surveillance Act. Enacted by a bipartisan Congress in 1978, the FISA statute was a response to revelations that the National Security Agency had conducted warrantless eavesdropping on Americans. To deter future administrations from similar actions, the law made a violation a felony punishable by a $10,000 fine and five years in prison.

Yet despite this ruling, the Bush Justice Department never opened an F.B.I. investigation, no special prosecutor was named, and there was no talk of impeachment in the Republican-controlled Congress.

I should plug that for those back home in Washington State, Bamford will be giving the keynote at our ACLU of Washington Membership Conference on February 24th – which is open to the public.

On the eve of the 6th Circuit hearing for the ACLU v. NSA case, we learn about even more vacuum cleaner approaches to domestic surveillance, except this time it’s under the guise of the FBI and not the NSA. Evidently entire streams of information are being sucked up, to be mined later by data analysis techniques.

Data-mining algorithms enable the systematic profiling of all people, with the intent of mining the good apples from the bad. Yet, who tells the computer what a “bad apple” is? And, you need everyone’s data to search through – everyday lawful Americans and the actual terrorists. Is trampling the rights of everyone in this country absolutely necessary in order to find the few bad apples?

Such data mining expects that terrorists never change their behavior, or it requires a history of data to establish patterns over time. In my opinion, the government has absolutely no right to keep such ongoing tabs on lawful citizens, and I believe our founding fathers would have agreed.

In the 1960’s and 1970’s, our day-to-day lives and communications were not recorded in bits and bytes. Now that we have so much more interaction with technology, we desperately need oversight and protections to keep those in power from trampling our freedoms.

The 6th Circuit hearing regarding the NSA’s warrantless wiretapping program is tomorrow at 3pm EST. I’ll be blogging throughout the day from Cincinnati, so more to come on what’s up for discussion and how the arguments go.

All too often, governments shirk their constitutional responsibility to guard against taxpayer-funded proselytization. It was therefore a welcome development in late 2003 when the State of Michigan, on its own initiative, stopped financing and sending kids to Teen Ranch, a residential youth services program that had been indoctrinating children on the taxpayers’ dime. Rather than trying to fix the problem, Teen Ranch sued the State, claiming a right to provide government-subsidized religious programming to youth. Last week, a federal appellate court summarily rejected Teen Ranch’s lawsuit.

As the ACLU noted in a brief filed in the case, Michigan severed its ties with Teen Ranch not because of the group’s religious character, purpose or views, but because Teen Ranch was the only one of nearly 100 private child care agencies contracting with the state — at least 35 of which were faith-based — that incorporated its religious beliefs and teachings into its State-funded services. Teen Ranch never denied that taxpayer dollars were being used to indoctrinate youth sent there by the State. Nor did Teen Ranch ever try to separate, monitor, or track government funds to ensure that they weren’t used for expressly religious activity, as required by the Constitution and the applicable regulations. Instead, Teen Ranch simply brushed aside those concerns and argued that the First Amendment not only permits, but actually requires the State to refer children to Teen Ranch’s sectarian program to to fund the minors’ indoctrination. The courts rightly rejected that claim and confirmed that when faith-based organizations accept government funds, they must play by the rules.

Reproductive freedom has been and will continue to be one of the issues closest to my heart. I just moved to the state at the beginning of the month to begin an internship with the ACLU, and I’m already excited about the focus here on women’s health issues and reproductive rights. I hope to keep working toward issues pertaining to women’s rights, as well as to provide my own input and ideas to help uphold the right to a medically safe abortion.

After 34 years, Roe v. Wade continues to be a source of reinforcement and inspiration for those concerned about reproductive rights. The ACLU and the Healthy Youth Alliance in the state of Washington are working toward a more comprehensive Sex-Education curriculum that would provide information to elementary and high school students about topics currently restricted in many districts: for example, in 28% of our state’s sexual education courses, teachers cannot discuss abortion. There is some evidence from the Office of the Superintendent of Public Instruction that there may be a link between students who learn more wide-reaching sexual education than abstinence-only programs and declining teen pregnancy rates. Raising informed youth who are aware of their options and rights involving sexuality and HIV/AIDS education would provide them with the confidence to make the right decisions. To me, a bill introduced last week mandating medically accurate sexual education in schools is an imperative as well as an encouraging step for our children’s future.