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NSA surveillance and the dream
police
Burke Hansen
The
Register
Friday Aug 24, 2007
Memories are very personal things, over which
we feel an intimate sense of ownership. Some people, such as spies,
are sworn to secrecy over this or that incident, but, as one event
or another washes over us, we typically aren't responsible one
way or another for them. They are the historical cloth out of
which we are cut. They are what makes us who we are.
This isn't science fiction. Who else could possibly own one's
memory, anyway?
One would think that, at the very least, one could testify under
oath about whether something did or did not in fact occur, through
no fault of one's own, as part of one's personal historical record
to establish one's relative guilt or innocence. Or, maybe not
- the second of the two cases, argued before the Ninth Circuit
Court of Appeals in San Francisco last week, concerned a situation
that could have been culled from a legal theorist's note book,
and which seems the more interesting of the two cases.
Uh, that memory is classified, your honor
That case, Al Haramain v Bush, had been consolidated with the
other, EFF v. AT&T, due to common issues of law and fact,
since both cases address the tricky legal issue of how a citizen
may establish "standing" to sue the government for illegal
warrantless surveillance when that very surveillance is considered
by the executive branch to be a state secret.
(Article continues below)
The cases differ in one important respect, however. Whereas in
EFF the evidence of illicit government snooping is purely circumstantial,
based on the testimony of an AT&T employee's description of
an NSA safe room located in San Francisco, in Al Haramain the
plaintiffs appear to have, through sheer Bush administration stupidity,
direct evidence of allegedly warrantless government surveillance.
That evidence, though, exists now in the memory of the plaintiffs
and their attorneys. To what extent should the courts allow testimony
of human recollection, even if only to establish legal standing,
when that recollection itself concerns top secret information,
and is potentially subject to the state secrets privilege?
Al Haramain, a defunct Saudi Islamic charity with an American
branch formerly based in Ashland, Oregon, had been accused of
maintaining ties to Al Qaeda. At one time, in those frenzied years
after the 9/11 attacks when the group realized that it was being
watched by the FBI, the foundation had sought guidance from the
DOJ on how to stay off of whatever terrorist watchlists were then
floating in government circles.
Inadvertently, in August 2004, during the course of whatever
legal sparring went on between the foundation's attorneys and
the government, the government handed over to the organization
a call log, stamped Top Secret on every page. The calls were between
the foundation's director and its attorneys - communications that
themselves might well be covered by attorney-client privilege.
Copies of the call log circulated within the charity and even
back to the foundation's headquarters in Saudi Arabia, until eventually
the FBI realized its mistake and demanded the return of the document
and whatever copies could be found, but nothing came of it until
late 2005 when the New York Times broke the story on a massive
NSA surveillance operation that, at least in part, targeted American
citizens.
The organization then realized the nature of the logs, and filed
a lawsuit in February 2006 alleging that it had been subject to
illicit surveillance by the NSA. Of course, by then The Document,
as it is now known, existed for purposes of litigation in the
recollections of those who had read it.
The attorney for the government in the case, Thomas Bondy, argued
vehemently that those recollections themselves should be barred,
even to establish a threshold issue such as standing, because
to do so would be the equivalent of allowing The Document, which
is stored in a secure location in San Francisco and transported
under armed guard, itself into evidence.
Bondy, much as Gregory Garre had in the EFF case, argued that
once the government asserts the state secrets privilege, the case
must be dismissed. It is, for all intents and purposes, an absolute
bar to litigation, he claimed.
And that in a nutshell is the problem - does the state secrets
privilege protect even unconstitutional state behavior? If the
only requirement to assert the privilege, as the government claims,
is that a judge - in secret, of course - determine the existence
of a secret program, no constitutional analysis need follow. Under
this logic, national security will always trump the Bill of Rights.
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The judges - McKeown in particular - focused more in the Al Haramain
arguments on the accidental nature of the government disclosure,
and the undeniable fact that were it not for that inadvertent
disclosure, the plaintiffs would never have known about the existence
of direct surveillance against them, rather than some ill-defined
general surveillance program.
Of course, the existence of a massive, 1984-style totalitarian
surveillance program is considerably spookier than isolated incidents
of government misconduct, but for the purposes of establishing
standing, a plaintiff needs to assert individualized harm. Such
inadvertent disclosure is not considered a waiver of the privilege,
since once the government found out about it, it quickly sought
the return of the documents.
A legal privilege is not an absolute bar to disclosure. Privileges
may be considered waived if not asserted, and privileged information
may still be discoverable by an opposing party if it would be
impossible to obtain the information in any other way.
Document... er..what document?
This is why the government had to assert that allowing the plaintiffs
to testify about their recollections of the documents would be
the equivalent of allowing the document itself into testimony,
to create an absolute shield around the very existence of the
program the document reveals. Never mind that the President has
acknowledged its existence to the press. Even if the plaintiffs
can establish for purposes of standing that they were surveilled,
the argument goes, they have no way of knowing whether or not
it was approved by the FISA court and therefore legal.
The judges pressed Bondy about why a redacted version would not
suffice for determining such a preliminary issue as standing -
even one reduced to articles and pronouns, for example? Nope -
once again, the existence of the program itself could not be revealed,
whether it was already in the public domain or not. Sure you remember
The Document, but the public record will never be allowed to acknowledge
that, even to establish your own innocence from some half-baked
terrorism charge.
And those are your stateside constitutional protections. If you're
rotting in Gitmo or some CIA black site, good luck, pal.
Whichever way the relatively liberal Ninth Circuit goes on this
case, both sides have already pledged to take the case to the
Supreme Court. Although Jon Eisenberg, the attorney for Al Haramain,
had a tougher time before the court than the attorney for the
EFF, the cases had been consolidated and there was no real reason
for the judges to revisit earlier arguments. For that same reason,
Bondy largely escaped the derision occasionally piled by the judges
on the Deputy Solicitor General, Gregory Garre, in the EFF arguments.
Ultimately, the direct evidence of surveillance in the Al Haramain
case provides the strongest argument yet to establish standing
against the the assertion of the state secrets privilege - more
so than the circumstantial evidence of generalized surveillance
postulated in EFF. If first-hand knowledge - or, more accurately
still, an admission of an adverse party - is insufficient to establish
individual standing, whatever will be?
It is, as Eisenberg has
said (http://www.wired.com/politics/law/news/2007/07/haramain_appeal),
the last case standing.
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