Lawyers Say They Have Evidence of Warrantless Surveillance
A case coming up before the 9th Circuit Court of Appeals may be the best chance for civil liberties lawyers to challenge the government's warrantless domestic surveillance program, attorneys say.
Earlier this month, the 6th Circuit Court of Appeals in Ohio dismissed a challenge to the so-called Terrorist Surveillance Program because the plaintiffs, a group of lawyers, professors and journalists, could not show they had actually been put under government surveillance.
If the court's reasoning is followed by other courts, it could doom the dozens of other similar pending cases where plaintiffs have no hard evidence that they were spied on under the top secret government program.
But, in one case in Oregon, lawyers say they have actual proof that the government listened in on their clients' phone calls without a warrant, providing a chance to have the courts decide whether the surveillance program is unconstitutional.
"This case presents the best chance of a court evaluating the legality of the surveillance program," said Curtis Bradley, a Duke University law professor and former State Department lawyer who studies national security law. "It may turn out that this is the only case that will be a vehicle for reviewing whether the government complied with" the Constitution and other laws governing eavesdropping.
'Last Case Standing'?
The surveillance program, authorized by President Bush in 2002, allowed the National Security Agency to monitor communications between U.S. residents and people in other countries with suspected ties to al Qaeda. The top secret program was revealed by The New York Times in 2005.
Al-Haramain Islamic Foundation, a now-defunct Islamic charity that the government says has ties to al Qaeda, says in court papers that the government accidentally gave it a highly classified document that shows the government monitored calls between the foundation's directors, who were overseas, and two of its lawyers in the United States. Those lawyers, Wendell Belew and Asim Ghafoor, are also plaintiffs in the case.
Lawyers and the plaintiffs would not discuss the contents of the document, which is being held in a secure FBI facility in Portland, but Al-Haramain's court filings suggest that it is a National Security Agency phone log of those conversations.
Though the document is being kept secret, the trial court judge plans to allow the plaintiffs to discuss their memories of the document as evidence to show that they were illegally placed under surveillance, which the government has argued would jeopardize national security.
If upheld on appeal when the 9th Circuit hears the case next month, the Al-Haramain case may force more information about the top secret spy program into the public view and may force courts to consider whether the program is constitutional.
Al-Haramain's lawyers say theirs is the only case in the country challenging the surveillance program where the plaintiffs have evidence that they were spied on. The American Civil Liberties Union, which lost the recent 6th Circuit case, has not decided whether it will appeal to the Supreme Court.
"Our case could end up the only game in town," said Jon Eisenberg, an attorney for the plaintiffs. "This could be the last case standing."
