Taking Liberties: The War on Terror and the Erosion of American Democracy (33 page)

As Wright reported, McConnell was forced to modify his congressional testimony after the fact in a number of respects. He testified that it took about twelve hours to get the Attorney General to issue an emergency
wiretap order. But after the Chair of the House Intelligence Committee, Silvestre Reyes, requested a timeline of the kidnapping, his office retracted that statement.
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It was not the FISA law that was at fault for delay, it seemed, but interagency wrangling. McConnell also retracted a statement to another committee
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—that Patriot Act FISA–bypassing legislation had contributed to the capture of terrorists in Germany.
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And in response to McConnell’s unequivocal statement, “[t]here’s no spying on Americans,” Wright pointed out that he personally knew otherwise. Wright had discovered that a transcript of a telephone call he had made from his home in Austin, Texas, to a source in Egypt was in an intelligence file because the FBI came to his home to question him about the contents of that conversation—and at least one other conversation he had with an English solicitor. Wright had also learned, to his horror, that the FBI was under the mistaken impression that his daughter had made the calls, and so she was listed on an FBI chart as an Al Qaeda connection—probably her debut in a terrorist-related database and her opportunity to be treated, like Brandon Mayfield, as the “agent of a foreign power.”

Congress commissioned the Inspectors General of the NSA and the four other agencies involved, including the Department of Justice, to evaluate the TSP program—in a report to be published
after
they had already decided to amend FISA. The joint Inspector General report came up with little or no concrete evidence of any successful terrorism prevention or prosecution that could be attributed to this spying program. Executive branch officials the Inspectors General interviewed “had difficulty citing instances” of success but nevertheless declared the program useful. The leads generated by this type of surveillance, the report found, had no demonstrable connection to terrorist activity, with the possible exception of several cases that “may have” directly contributed to counterterrorism successes, but which were discussed only in the classified version of the report.
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There is indeed reason to be skeptical about how useful this unprecedented spying program actually is. The program aims at collecting vast quantities of data without targeting data that really may be useful. Like the 9/11 Commission, James Bamford, Pulitzer Prize–winning historian of the NSA, has consistently argued that the NSA needs to pay more attention to processing information rather than to the quantity of information it collects.
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Again, the executive branch insiders clung to their dragnet because it might at some point catch something useful—if that bit of information was noticed—even though the program operates at the expense of a variety of constitutional rights.

On the other side of the scale, the hearings could not include more than abstract testimony about the costs of the surveillance program because most victims of international eavesdropping do not, unlike Wright, know with certainty that the government has been intercepting their conversations. On one side, officials like Mike McConnell avowed that they were saving American lives and that evidence supporting that claim had to remain secret; on the other, there were no human faces associated with the costs of the program.

Although the program Congress adopted in the FAA is vastly intrusive and unproven, the only real controversy on the floor of Congress in 2008 was over an amendment granting retroactive immunity to the telecommunications providers that had collaborated in providing access to the requested information, in violation of the law in force at the time. The three biggest telecommunications companies, AT&T, Verizon, and BellSouth, had cooperated and provided an inside track to their customers’ conversations without insisting on court orders. But another telecom, Qwest, had been squeamish about the legality of the program, fearing substantial fines for violating federal privacy law that was still very much on the books. On being asked to collaborate, Qwest suggested that the NSA comply with the law by obtaining an order from the Foreign Intelligence Surveillance Court. Officials responded that they didn’t want to do that because the FISA court might not approve. The NSA tried appeals to patriotism and threats to withhold future lucrative government contracts, but CEO Joseph Nacchio remained obdurate and refused to provide the records of Qwest’s fifteen million customers in this legally questionable situation. Nacchio later said that the government actually did withdraw hundreds of millions of dollars of contracts in retaliation.
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Libertarians were as concerned as civil libertarians about the government’s strong-arm tactics. Supporters of Representative Ron Paul organized a bipartisan political action committee, Accountability Now, to fund advertisements against members of Congress who supported retroactive immunity, whatever their party.
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The sunset hearings in 2012 will give Congress another opportunity to examine this program more fully. Meanwhile, what has been at least as concerning as Congress’s action has been the refusal of the courts to consider cases alleging that the president’s unauthorized surveillance program was illegal or unconstitutional. One recent ray of hope is a decision by the United States Court of Appeals for the Second Circuit, in New York, allowing the continuation of a lawsuit challenging the constitutionality of the successor to that program, the FAA.

Closing the Courthouse Doors

ACLU v. NSA
—In 2006, after the NSA eavesdropping and data mining programs were exposed by reporters, ACLU lawyers Ann Beeson, Jameel Jaffer, and Melissa Goodman brought a lawsuit claiming that these programs were illegal and unconstitutional. Goodman, the newest member of the team, was involved in the lawsuit “from the minute we read about this program in the
New York Times
.” She and her colleagues thought that the “illegal” part would be easy enough to establish, as the FISA statute expressly prohibited this type of spying without a court order. The clients they were representing had compelling explanations of why the program violated a range of constitutional rights, even if they could not say for sure that their own conversations had been intercepted.

Nancy Hollander, a criminal defense attorney, found that people overseas whom she needed to consult or interview in connection with representation of her clients were afraid to talk openly with her. Legal experts said that she would be violating her ethical responsibilities by holding conversations with her clients that were likely to be intercepted. Larry Diamond, a scholar of democracy development, believed that the global surveillance program would inhibit people who live in repressive countries from making phone calls or sending e-mails to the United States to “report developments and deliver opinions and analyses critical of their own governments, or of the United States government, or even perhaps of powerful American or international business interests.” Scholar Barnett Rubin, Director of the Afghanistan Regional Project at NYU’s Center on International Cooperation, who researches and writes about conflict prevention in Afghanistan and the surrounding region, found that his collaborators, moderate Muslims and Islamic scholars, had become afraid to talk with him for fear that their conversations would end up in a federal databank and cause the U.S. government to harass them or put them on watchlists. Members of the environmental organization Greenpeace, previously targeted for surveillance by the NSA, feared that their social activism and opposition to Bush Administration environmental policies might make them a target once again, as secrecy and lack of oversight readily conceal use of discretionary surveillance powers to serve political agendas. Other plaintiffs included writer Christopher Hitchens (“I believe the President when he says that this will be a very long war, and insofar as a mere civilian may say so, I consider myself enlisted in it. But this consideration in itself makes it imperative that we not take panic or emergency measures in the short
term, and then permit them to become institutionalised”), historian James Bamford (“What greatly concerns me as someone who has written more about NSA than any other writer is that in the past, when NSA was allowed to operate in absolute secrecy, without oversight, it became a rogue agency”), and the ACLU itself.

The Bush Administration fought back, first arguing that the courts should not review the legality of the programs because of the “state secrets privilege.” Even to defend the NSA surveillance programs in court, the government argued, would necessarily compromise the government’s national security secrets. The Detroit-based district judge assigned to hear this lawsuit, Anna Diggs Taylor (a 1979 Carter appointee who was the first African-American woman on her court, and who had served as Chief Judge) bisected the case. She honored the government’s desire to keep the curtain closed on its data mining program and dismissed claims about that program on the basis of the state secrets privilege. But she thought that the facts already publicly revealed about the eavesdropping program were telling enough to allow a court to make a decision—and her decision was that the program was both illegal and unconstitutional.
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When this ruling was appealed, however, the Sixth Circuit Court of Appeals, which covers Michigan even though it is based in Cincinnati, was unsympathetic to the plaintiffs’ concerns about the impact of this program on their work, our rights, and our democracy.
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The appeals court decided that Nancy Hollander and the other plaintiffs did not have standing to raise any constitutional or statutory claims because they could not, predictably, establish that they personally had been under surveillance—the same problem the Muslim Community Association encountered in trying to challenge the Patriot Act. Paradoxically, the very secrecy of the program was deemed to prevent a challenge to the program. The Supreme Court declined to hear the case.
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Would anyone ever be able to establish standing and get a judicial ruling on the constitutional issues involved?

Post-FAA Litigation

Amnesty v. McConnell
—Within an hour of President Bush signing the FAA, litigators Jaffer and Goodman were back in court, in New York this time, with a new roster of authors, scholars, and human rights and labor organizations as clients. These included Amnesty International, whose American branch frequently calls and e-mails Amnesty’s London-based researchers to discuss human rights investigations and abuses related to
terrorism and counterterrorism, and to events in Afghanistan and Iraq—certainly information that could be classified as “foreign intelligence” information. Under the FAA, the government could intercept all of Amnesty’s calls between the United States and London, en masse, compromising Amnesty’s confidential sources and strategy discussions. Another plaintiff, Scott McKay, was one of the Idaho lawyers who had represented Sami al-Hussayen in his material support prosecution. He feared that his continuing conversations with his client, now living in Saudi Arabia, were being monitored. The lawsuit argued that the FAA program violated the First and Fourth Amendments—the same type of constitutional claims Judge Taylor had accepted.

This case was pending in the district court when Barack Obama was sworn in. The Obama lawyers did not change course, however, and continued to argue that the plaintiffs should not be allowed to raise their claims. The district court ruled in favor of the government, finding that the plaintiffs lacked standing, even though the number of people threatened with eavesdropping is far greater than under the original Bush program and even though this decision immunizes the statute itself.
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But in March 2011, the Second Circuit Court of Appeals disagreed with this dismissive decision, finding that the lawyers, journalists, and labor, legal, media, and human rights organizations bringing the lawsuit had shown that they had a reasonable fear of future injury and that they were incurring costs in trying to protect the confidentiality of sensitive international communications
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—like the cost of traveling overseas to hold meetings in person. This decision, if it stands, only means that the lawsuit can continue, not that the court has found the law unconstitutional. As this book goes to press, the Obama Administration had just asked the Second Circuit to rehear this decision.

Jewel v. NSA
—The Electronic Frontier Foundation (EFF) had taken a different tack in its approach to the president’s Terrorist Surveillance Program, representing outraged customers who wanted to sue their telecommunications providers for jeopardizing their privacy by collaborating with an illegal program. Over forty cases brought against the telecoms from 2006 on by people ranging from AT&T clients like Tash Hepting to author Studs Terkel (who had been blacklisted during the McCarthy era) were eventually consolidated before one judge: Vaughn Walker in San Francisco. Walker had been nominated to the federal bench by Ronald Reagan but was not confirmed because senators including Ted Kennedy thought he was too conservative. He had belonged to a private club that
excluded blacks and women and, while in private practice, had represented the Olympics Committee in its attempt to keep the “Gay Olympics” from using that name.
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He was subsequently renominated by George H. W. Bush and confirmed in 1989.

When Congress granted retroactive immunity to the telecoms in 2008, the EFF had to narrow its sights and focus on claims against the NSA itself. One of the arguments made in favor of the 2008 immunity provision in Congress had been that people who wanted to challenge the eavesdropping program should have to sue the government, which had persuaded the telecoms to violate the law in the name of national security, rather than the companies, which had merely complied with what authoritative government officials had told them was a legal and patriotic program.
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