Legal challenges to NSA warrantless searches in the United States

Legal challenges to NSA warrantless searches in the United States started one month after the existence of an NSA domestic surveillance program was revealed in the press on December 16, 2005. The litigation faces unusual obstacles. Alberto Gonzales has admitted that the NSA program includes spying on attorney-client communications , and one of the attorneys for the Center for Constitutional Rights has pointed out that the administration is routinely arguing that its court filings in defense of the NSA program are so secret they cannot be served on the opposing counsel for rebuttal, a procedure that is unprecedented in the history of American justice but that some courts are accepting. While the administration has now supposedly brought the program under the relevant law, scholar Chip Pitts has pointed out some of the substantial legal issues that continue to exist.
ACLU
On January 17, 2006, the ACLU and the Center for Constitutional Rights filed separate lawsuits, ACLU v. NSA and Center for Constitutional Rights v. Bush, challenging the legality of the warrantless spying program, with a range of plaintiffs such as defense lawyers, journalists, scholars, political activists, and organizations, including Christopher Hitchens, Larry Diamond, and Greenpeace, who communicate with or travel extensively to Middle Eastern nations. The ACLU suit was filed in the United States District Court for the Eastern District of Michigan challenging the constitutionality of the "secret government program to intercept vast quantities of international telephone and Internet communications of innocent Americans without court approval". The complaint alleges violations of the Separation of Powers and the First and Fourth Amendments. The plaintiffs seek an injunction. Because of the nature of the program, the plaintiffs do not allege any specific instance of harm, but that because of the nature of the plaintiffs' work they have a "well-founded belief that their communications are being intercepted". Among the co-plaintiffs is Larry Diamond who was an advisor to Iraq's Coalition Provisional Authority. In a statement, Larry Diamond states that the NSA program which intercepts communications will have a chilling effect on communications to and from the Middle East.
On August 17, 2006 U.S. District Court Judge Anna Diggs Taylor ruled in ACLU v. NSA that the warrantless wiretapping program is unconstitutional and ordered that it be stopped immediately, on the grounds that such activities are violations of the rights to free speech and privacy. In her ruling, she wrote:
:"The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well."
Center for Constitutional Rights
The Center for Constitutional Rights (CCR) suit was filed in the Federal District Court for the Southern District of New York. CCR said, "Given that the government has accused many of CCR's overseas clients of being associated with Al Qaeda or of interest to the 9/11 investigation, there is little question that these attorneys have been subject to the NSA Surveillance Program. The Center filed today's lawsuit in order to protect CCR attorneys' right to represent their clients free of unlawful and unchecked surveillance."
Electronic Privacy Information Center
The Electronic Privacy Information Center (EPIC) also filed a lawsuit over the warrantless domestic spying program, two days after the lawsuits filed by the ACLU and the CCR. sued under the to force the government to divulge information about the spying program.
EPIC has obtained the first Freedom of Information Act documents released by the National Security Agency on its controversial surveillance program. The documents, which are internal messages (pdf) from the agency's director to staff, defend the NSA's warrantless eavesdropping and discourage employees from discussing the issue with the news media. (Jan. 4)
On February 10, 2006 U.S. District Judge Henry Kennedy expressed impatience with the Administration's timetable for FOIA documents. "Seven, eight, nine, 10 years? Is that the government's position?" Kennedy asked Ropa Bhattacharyya, the Justice Department attorney. She responded that timing would depend on complexity "and in this case there are a lot of complexities." The Department of Justice might be able to start releasing internal memos as early as March 3.
On February 16, 2006, Judge Kennedy rejected the Justice Department's demand to set its own time frame and ordered internal documents and legal opinions to be turned over in 20 days. He said he did this to inform a substantial dialogue about presidential powers and individual privacy rights, and because "President Bush has invited a meaningful debate about the warrantless surveillance program." Judge Kennedy agreed with the FOIA request which said a DoJ timetable "would give the agency unchecked power to drag its feet and 'pay lip service'" to the FOIA.
At the deadline on March 8, 2006, the Department of Justice yielded up documents which had been released previously, except David Kris' legal analysis for Courtney Elwood, which had not been released previously. Seeking delay in a motion for relief, the Department of Justice told the court it could furnish an index of unclassified documents by the March 20 deadline, but asked that it be relieved of that deadline for classified document release, submitting secret supporting statements by James A. Baker, Counsel to Office of Intelligence Policy Reveiew, and Steven G. Bradbury, Acting Assistant Attorney General for Office of Legal Counsel. The motion proposed providing an update on progress In 60 days; in 120 days some classified documents would be processed for release, but the classified document index will itself be classified, so it can not be released.
Ali al-Timimi
Jonathan Turley, who is representing Ali al-Timimi (convicted of soliciting others to levy war against the United States), persuaded the Fourth Circuit Court of Appeals to halt appellate proceedings January 24, 2006. The appellate court is considering whether to send the case back to the trial court to discover if NSA warrantless surveillance was used to monitor Ali. If it does, Turley said, "the government would have to establish whether Dr. Al-Timimi was intercepted under this or any other undisclosed operation, and the court could have to look at the legality of the whole operation."
Electronic Frontier Foundation
AT&T has been named a defendant in a class action lawsuit, Hepting vs. AT&T, that argues the telecommunications company illegally cooperated with the National Security Agency's secret eavesdropping program. The EFF's was filed on January 31, 2006 in the U.S District Court, Northern District of California. The suit says AT&T's alleged cooperation violates free speech and privacy rights found in the U.S. Constitution and also contravenes federal wiretapping law, which prohibits electronic surveillance "except as authorized by statute." The lawsuit alleges that AT&T Corp. has opened its key telecommunications facilities and databases to direct access by the NSA and/or other government agencies, thereby disclosing to the government the contents of its customers' communications as well as call detail records of billions of phone calls made by its customers, including the lawsuit's class members.
The U.S. Government joined the case on April 28, 2006, stating that by May 12 it would argue that the case must be dismissed on grounds of State Secrets Privilege. On May 1, 2006, EFF attorneys Cindy Cohn and Reed Kathrein asked federal Judge Vaughn Walker to unseal testimony by witness Mark Klein and order deposition of AT&T. AT&T requested a ruling on dismissal prior to a ruling on whether it may be questioned by litigants. The hearing for a preliminary injunction against AT&T is scheduled for June 21, 2006.
The law does not permit the NSA to delete information, according to an expert on government records at Stanford University Law School. Commenting on the EFF case, Alan Morrison told the San Jose Mercury News that the NSA is legally obligated to keep all the information it collects: "There's no way the NSA can destroy the private, irrelevant material it scoops up without violating the Federal Records Act," he told the paper.
On May 17, 2006, U.S. District Judge Vaughn Walker refused the requests of both sides with regard to records submitted by EFF which are under seal. EFF lawyer Maria Morris lost her bid to have the documents allegedly revealing criminal activity unsealed. AT&T lawyer David Anderson lost his bid to have the documents allegedly revealing trade secrets returned to AT&T.
Center for National Security Studies and The Constitution Project
On February 28, 2006, the Center for National Security Studies (CNSS) and the Constitution Project (TCP) filed a 48-page amici curiae (friend of the court) brief entitled [http://www.cnss.org/FISC%20Memorandum%20(signed).PDF In re Warrantless Electronic Surveillance] with the Foreign Intelligence Surveillance Court, making a very detailed and thorough legal repudiation of the administration's justifications for its warrantless domestic surveillance program. The filing was procedurally unusual, because it was not filed in connection with any known litigation, but argued that this was necessary since the Court's proceedings are secret, but definitively applicable to many of the Court's cases inasmuch as they had any involvement with the legality of the warrantless domestic surveillance program. Besides attorneys for CNSS and TCP, the brief names three attorneys from the prominent law firm of Hogan & Hartson, which happens to be the old law firm of Chief Justice John Roberts.
Al-Haramain Islamic Foundation
On March 2, 2006 The Washington Post reported that the al-Haramain Islamic Foundation sued the U.S. government on February 28, 2006 in federal court over conversations intercepted without warrants. An anonymous source told the Post that the government had, by mistake, provided classified documentation of March and April 2004 NSA intercepts to the litigant in May 2004. The lawyer for the plaintiff, who would not answer reporters' questions, asked the judge to accept and review sealed documents.
Other lawsuits
* A class action lawsuit on behalf of Verizon customers was filed in mid-February, 2006 in the U.S. District Court in New York, claiming $20 billion in damages from Verizon for alleged violations of customer privacy by warrantless government wiretapping.
* A class action lawsuit on behalf of Verizon customers in New Jersey was filed on May 12, 2006 in the U.S. District Court for the Southern District of New York, claiming $5 billion in damages from Verizon for releasing customer data without any warrants.
* According to MarketWatch, BellSouth Corp and Verizon Telecommunications are now facing lawsuits seeking billions of dollars in damages for illegally turning over personal calling records to the government. The damages amount to over $1,000 per person affected. Consumers can sue their phone service provider under communications privacy legislation that dates back to the 1930s. Relevant laws include the Communications Act, first passed in 1934, and a variety of provisions of the Electronic Communications and Privacy Act, including the Stored Communications Act, passed in 1986.

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