Taking Liberties: The War on Terror and the Erosion of American Democracy (34 page)

After Obama took office, the EFF agreed to give the government an extension of time to file papers in their lawsuit against the NSA, hoping that the Obama lawyers would not be so relentlessly opposed to allowing the court to decide, once and for all, whether the NSA program had been illegal or unconstitutional. But the tenor of the government’s arguments did not change. Judge Walker found that although the plaintiffs would have had standing to sue the telecoms (based on their private contractual relationships), they did not have standing to sue the government because their grievances were “generalized.”
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In other words, so many people were affected by the surveillance programs that no one would be allowed to challenge them. So where there was standing (against the telecoms), there was no possibility of raising a claim because Congress had shut the courthouse door; where there was a possibility of a claim (against the government agency), the courts found that there was no standing unless someone could prove that they had actually been spied on. The Obama lawyers also argued that the government was immune from this lawsuit and every other lawsuit on the subject unless the government were to voluntarily disclose that the plaintiffs in the case had been spied on, and actively participate in the litigation.
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In other words, no one could sue the administration for acting unconstitutionally unless the administration decided that it wanted to be sued. The EFF vented its frustration with the new administration on its website: “In Warrantless Wiretapping Case, Obama DOJ’s New Arguments Are Worse Than Bush’s.”
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Al-Haramain
But Benjamin Franklin’s maxim that three people are unable to keep a secret struck again—putting Judge Walker in a position to rule on the legality and constitutionality of the pre-2008 eavesdropping program. The case involved the Al-Haramain Islamic Foundation,
an Oregon charity affiliated with a Saudi organization of the same name, which was one of the Muslim-affiliated charities to have its assets frozen in February 2004 while OFAC was investigating whether or not the organization had ties to Al Qaeda. Lynne Bernabei, a lawyer for the organization, found herself in the highly unusual position of knowing definitively that OFAC had reviewed intercepted conversations between Al-Haramain’s Saudi-based director, Soliman al-Buthi, and its American attorneys, Wendell Belew and Asim Ghafoor.
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But she and her colleagues were in the even stranger position of not being allowed to offer this proof to satisfy the court that they had indeed been spied on.

Here’s how they came to know about the top secret document. The lawyers for Al-Haramain had requested that OFAC provide them with documentation to explain why they were suspected of having terrorist connections. Someone at OFAC gathering documents to send in response to this request mistakenly included a classified log of captured attorney-client conversations. The FBI advised Lynne Bernabei that this document, now in her possession, was still classified, and she agreed to return all of the lawyers’ copies of the document, as requested. It was impossible to put the entire cat back into the bag, however, because the document in question had already been distributed to the organization’s Board of Directors and read by a
Washington Post
reporter. Bernabei and her colleagues were threatened with prosecution if they revealed what was in the logbook to anyone else.
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The Bush Administration lawyers argued that this case should be dismissed both because of the state secrets privilege and because the plaintiffs had no standing. One of the things retroactively considered to be top secret was Al-Haramain’s surrendered documentation that the NSA had eavesdropped on them. This now-quarantined evidence distinguished Al-Haramain from the plaintiffs in the earlier case against the NSA, who had seen their victory evaporate because they did not have concrete proof that anyone had spied on them. The vexing question of whether the organization should have to or could establish that it had standing without relying on the out of bounds document was not the only stumper Judge Walker faced in wrestling with this case over the course of the next four years.

This litigation too spilled over into Obama’s term. Obama’s lawyers continued to argue that the court should pretend that the “secret” document did not exist, and so the plaintiffs could not rely on it. They argued that nothing short of “the government’s frank admission of the unlawful electronic surveillance and active cooperation in the litigation against it
under FISA would suffice” for standing.
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In other words, if you don’t have evidence that you’ve been spied on, you can’t bring a constitutional challenge because you can’t show you have standing; if you do have evidence, the evidence is secret and can’t be used. Either way, the door remains shut. As an alternative, the Obama lawyers also argued that the case had to be dismissed because of the state secrets privilege. Because the Bush Administration had been criticized in many quarters for its overreliance on the state secrets privilege, Attorney General Holder, as mentioned earlier, announced that he was instituting a new, leaner state secrets privilege. He promised that he could be trusted to withhold information from the courts only when he thought it was really necessary to do so.
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Of course, if evidence is hidden even from the court, the court cannot review whether a claim of privilege is actually justified, or perhaps a cover-up for misconduct. The Obama lawyers perceived this problem and dealt with it by promising the court that they had not committed any misconduct and therefore could be trusted.

Vaughn Walker thought the state secrets claim in this context was the height of arrogance. “Under defendants’ theory, executive branch officials may treat FISA as optional and freely employ the [state secrets privilege] to evade FISA, a statute enacted specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.”
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In an order issued in January 2010, he walked a tightrope between national security considerations and fairness to the plaintiffs by asking the Obama lawyers (1) to produce the quarantined document for private review by the court (after which the court would decide whether or not the plaintiffs had established that they had been under surveillance and therefore had standing), (2) to begin the process of procuring security clearances for some of the plaintiffs’ lawyers so that they could respond to the government’s arguments about the document, and (3) to reconsider whether any pertinent documents could be declassified. Over the next several months, the defendants refused to cooperate, according to Judge Walker. The government lawyers said that they did not have authority to allow the document to be shared with the plaintiffs’ lawyers if the agencies involved, their clients, objected. Although two of the plaintiffs’ attorneys were found suitable for security clearances, the Director of the NSA “refused to cooperate with the court’s orders, asserting that plaintiffs’ attorneys did not ‘need to know’ the information that the court had determined plaintiffs’ attorneys would need in order to participate in the litigation.”
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The government lawyers refused to work with the plaintiffs’ lawyers and the court to draft
a protective order that might have solved the confidentiality problem. At one point, the lawyers threatened that if the judge insisted on sharing the secret document with Al-Haramain’s lawyers, they would “withdraw” the document from the file, raising a specter of agents forcibly raiding the file cabinet in the judge’s chambers. The report on whether or not this document could be declassified evidently mentioned at one point that there was an “error” in the document. Skeptics wondered if the Obama lawyers were acting out of an exaggerated sense of principle in trying to preserve secrecy, or if revealing the document would indeed expose some sort of malfeasance.
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Trying to litigate constitutional claims against the Obama executive agencies was turning out to be just as much of an ordeal as it had been under Bush. The plaintiffs’ lawyers were able to come up with a number of public statements by government officials suggesting that their conversations had indeed been intercepted under the NSA program they challenged, and the judge mercifully agreed that these statements added up to standing—even without the quarantined document. The government lawyers, however, resolutely refused to defend the legality of the NSA’s actions on the theory that the court should not be considering those arguments at all, and so the court declared the plaintiffs to have won by default. The government continued to argue against the organization getting any form of relief. Meanwhile, the Oregon branch of Al-Haramain had gone out of business.
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Even if Judge Walker’s ruling on the merits of the case survives appeal, his decision may not have much impact. The decision does not concern the current law, but only the legality of the NSA program before it was approved by Congress. And this case was brought by a group whose circumstances could not conceivably be duplicated. So Judge Walker’s decision about the legality of the NSA program, with Judge Taylor’s similar ruling, may be of only historical interest, while the constitutionality of the current FAA-approved program remains untested.

While the Justice Department worked to immunize all versions of the surveillance program from litigation in 2009, Attorney General Holder reported to congressional intelligence and judiciary committees, as he was required to do by the FAA, that there had been a problem with overcollection of data, but that the administration was fixing it. It is not clear from the public record just what mistakes had been made. The
New York Times
story reporting this admission also reported that during the previous administration, the eavesdropping program had been used to spy on a member of Congress—highlighting the danger of minimizing judicial review.
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As Frederic A. O. Schwarz, Jr., who was counsel to the Church
Committee, ruefully observes, we keep forgetting the hard-won lessons of the Church Committee report about the costs of unilateral executive branch surveillance powers.
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The Secret Court Strikes Again

Meanwhile, the secret FISA Court of Review had gotten in on the action. After Congress passed the Protect America Act in 2007, temporarily extending the president’s surveillance program, an unidentified company brought a Fourth Amendment challenge in the FISA court to an order they received under that Act, arguing that it should not have to comply because the statute violated the Fourth Amendment. Like Nick Merrill, who received a National Security Letter ordering him to turn over client information in his possession, the company had Fourth Amendment rights of its own. Because the company clearly did have standing,
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the FISA court ruled against its constitutional claim on the merits. The company appealed and the FISA Court of Review made one of its rare appearances to affirm the decision. As previously noted in
chapter 6
, although Chief Justice Rehnquist’s appointees to the FISA court had been somewhat balanced politically, his choices for Court of Review were all Republican appointees.
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A similar pattern held true for Chief Justice Roberts, who chose seven Republican appointees and one Democratic appointee for the FISA court, but only Republican appointees for the Court of Review.

The corporate John Doe in this case argued that affording so much unreviewable discretion to the executive branch invites abuse. But the new judges on the review court were as dismissive of Fourth Amendment concerns as their predecessors had been in the challenge to the law that affected Brandon Mayfield: “[T]his is little more than a lament about the risk that government officials will not operate in good faith”
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—dismissing, in other words, the raison d’être of the Fourth Amendment. Unless the company could show actual abuses of power instead of just the potential for abuse, the court said, the statute was entirely reasonable as applied in this case. The Attorney General would play the role a court would have played in preventing abuses, the court said, and after all, the government promised that the manner in which its agents were implementing the statute avoided potential constitutional difficulties. Just trust us. On the same day that Jaffer and Goodman filed their challenge to the FAA, they also filed a motion in the FISA court asking to be notified of any FAA-related challenges, for leave to participate in any decision about the FAA as amicus curiae, and
for publication of any relevant opinions.
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The FISA court ordered the government to respond to the request, but then denied the motion.

The 2007 Protect America Act had already expired by the time of this court’s ruling, and so this decision too lacks real-world impact. But the opinion does reveal the inclinations of the members of the FISA review court. Although the 2008 FAA that replaced that 2007 Act is even more expansive, there does not seem to be any reason to expect that this custom-made review court would regard the FAA any differently. Once again, it turns out that structure and process matter. In a regular federal court, judges are randomly assigned to hear cases, which means that a litigant may encounter a Victor Marrero or Ann Aiken who will take constitutional claims very seriously and not just trust the government. Regular federal courts operate publicly, inviting the public to attend arguments, and publish their opinions, only closing arguments or redacting their opinions in strictly limited measure in rare cases; the FISA courts operate in deep secrecy and only occasionally decide to publish opinions. Accountability and transparency matter. And unlike regular federal courts, which have to mediate between two parties with opposing views and their contending lawyers, the FISA court and Court of Review never see the individual people, like Brandon Mayfield, Studs Terkel, or Nancy Hollander, whose rights are actually affected by their rulings. Under the circumstances, getting the FISA Court of Review to approve whatever spying the government wants to do seems about as difficult as getting a notary public to put a stamp on a lease or a will.