Lawsuits aim to curb warrantless domestic surveillance.

When the New York Times revealed late last year that the Bush administration was directing the National Security Agency (NSA) to conduct warrantless surveillance of American citizens, reaction in print, broadcast, and blogosphere was swift--and heated. The program's critics decry it as part of a dangerous pattern of executive overreach, while its supporters call it a legitimate exercise of the president's war powers.

Now, the battle has moved from the op-ed pages to the courtroom.

The day the surveillance story broke, the Electronic Privacy Information Center (EPIC), a Washington, D.C.-based public-interest research center, filed a Freedom of Information Act request, demanding that the Department of Justice release information about the program. In February, U.S. District Court Judge Henry Kennedy ordered the NSA to respond to EPIC's request within 20 days. (Electronic Privacy Info. Ctr. v. Dep't of Justice, No. 06-CV-00096, 2006 WL 357831 (D.D.C. Feb. 16, 2006).)

EPIC's lawsuit consolidates another seeking the same information, brought by the American Civil Liberties Union (ACLU). In February, EPIC filed a similar lawsuit against the NSA, requesting the release of all documents on the surveillance program. (Electronic Privacy Info. Ctr. v. NSA, No. 1:06-CV-00199, (D.D.C. filed Feb. 6, 2006).)

In January, the New York City-based Center for Constitutional Rights (CCR) filed a federal lawsuit against President Bush and the directors of the NSA, CIA, FBI, and other government agencies, "seeking an order that would require President George W. Bush and his agents to halt an illegal and unconstitutional program of electronic surveillance." The suit was filed on behalf of CCR's lawyers, staff, and clients, many of whom "are within the class of people the government has described as the targets of the warrantless NSA surveillance program." (Ctr. for Constitutional Rights v. Bush, No. 1:06-CV-00313 (S.D.N.Y. filed Jan. 17, 2006).)

"We see three things going on here," said Shayana Kadidal, a CCR staff attorney and lead counsel in the suit. "One is a long-term agenda to advance executive power--to reverse the so-called erosion in executive power that has occurred over the past 25 years. The second is the government's broad-brush approach, which is so completely incompatible with the particularity requirements of the Fourth Amendment that I think the American people would reject it wholesale." The third, he said, is an attempt by the government to "chill" confidential speech between clients and attorneys, and sources and journalists.

Also in January, the ACLU filed its own lawsuit against the NSA, saying the agency has violated the Constitution. Its clients include the Council on American-Islamic Relations, Greenpeace, the National Association of Criminal Defense Lawyers, and several journalists and political activists. (ACLU v. NSA, No. 2:06-CV-10204 (E.D. Mich. filed Jan. 17, 2006).) Among the named plaintiffs are the controversial British writer Christopher Hitchens, a vocal supporter of both the Iraq war and the war on terror, and James Bamford, author of two books about the NSA, The Puzzle Palace and Body of Secrets.

Two other lawsuits come at the same target from a different direction. In late January, the Electronic Frontier Foundation (EFF), a nonprofit organization based in San Francisco, filed a massive class action against telecommunications giant AT&T. The class includes all those who were AT&T customers when the surveillance began--an estimated 25 million to 30 million people. EFF's complaint says the company violated its customers' privacy by turning over confidential records to the NSA and did so "in violation of federal electronic surveillance statutes, as well as the First and Fourth Amendments." (Hepting v. AT&T Corp., No. 3:06-CV-00672 (N.D. Cal. filed Jan. 31, 2006).)

Michael Pascazi, a lawyer in Fishkill, New York, filed a similar class action in February against Verizon Communications, alleging that it too violated its customers' privacy. The lawsuit charges that Verizon--which has more than 51 million customers--opened its key telecommunications facilities and databases to direct access by the NSA and other intelligence-gathering agencies. (Pascazi v. Borrelli, No. 7:06-CV-01221 (S.D.N.Y. filed Feb. 16, 2006).)

The Pascazi and EFF lawsuits do not challenge the wiretapping program itself. They are based on the assumption that it is illegal, and they aim to stop illegal behavior by undercutting private businesses that facilitate it.

"Our strategy is absolutely to take a different angle," said Bert Voorhees of San Francisco, one of the lawyers representing EFF. "Simply put, we are trying to make it financially not viable to engage in illegal conduct. We are saying to AT&T: If you don't require the government to comply with the law and get a warrant, you won't be able to do business. In the real world of litigation, this is often more successful than getting an injunction."

Voorhees predicted that AT&T's lawyers "will say to the government, 'Come back with a subpoena.' In corporate America, there is no better way to force someone to comply with the law than to say, 'You're going to go bankrupt.'"

White House spokesman Scott McClellan called the lawsuits "frivolous." He suggested that these organizations would spend their resources more fruitfully if they investigated who damaged the government's security efforts by leaking information about the surveillance program to the New York Times and other papers.

But the lawsuits keep coming. In February, the New York Times filed its own lawsuit against the Department of Defense (DOD). It asks that the court compel the DOD to respond to a Freedom of Information Act request by turning over all information related to the warrantless surveillance, including the names of people or groups identified as targets, or explain why it cannot do so. (The N. Y. Times Co. v. US. Dep't of Def., No. 1:06-CV-01553 (S.D.N.Y. filed Feb. 27, 2006).)

For lawyers, the most immediate and disturbing fallout from the wiretap program is its effect on lawyer-client privilege.

Ann Beeson, lead counsel in the ACLU lawsuit, said the program has forced lawyers to change how they interact with clients. "And it's not just criminal defense lawyers," she said. "This also affects immigration lawyers and lawyers who might have witnesses based in foreign countries. Their clients will be even more reluctant to speak openly."

Beeson said she knows of lawyers who have decided to conduct only face-to-face interviews with their clients to avoid the risk that confidential telephone communications could be intercepted by a government wiretap. She noted that this could make court cases prohibitively costly and cumbersome and make witnesses and clients even more reluctant to testify.

In his statement as one of the ACLU plaintiffs, criminal defense lawyer Josh Dratel noted that "those from whom lawyers seek information, particularly those outside the United States, will be justifiably reticent to share information if they fear, as they can do now reasonably, that the government is a party to the communication. Consequently, a defendant's Sixth Amendment right to effective assistance of counsel will be irretrievably impaired, and the right to a fair trial irretrievably compromised."

"Attorney-client confidentiality is one of the most respected and privileged of all the confidentialities, and surveillance kills it," said Kadidal.

The American Bar Association recently cited breach of lawyer-client confidentiality as one of its objections to warrantless surveillance. In February, the ABA's House of Delegates overwhelmingly adopted a resolution opposing the program.

War powers?

In his State of the Union speech last December, Bush said he had condoned the wiretapping, he had the legal and constitutional right to do so, and he planned to continue the program. In a December 15, 2005, press conference, Attorney General Alberto Gonzalez and Michael Hayden, principal deputy director of the NSA, reiterated the government's argument that the president's war powers allow him to authorize domestic surveillance.

The Senate Judiciary Committee held hearings early this year to look into the NSA program after the committee's chair, Sen. Arlen Specter (R-Pa.), expressed misgivings about it. Gonzalez testified that when Congress authorized the president to invade Iraq--in the 2001 Authorization for Use of Military Force--it also authorized him to take any necessary measures to counteract terrorism. Gonzalez refused to turn over documents related to the program, citing executive privilege. In late February, the White House denied a request by Democratic representatives for a special counsel to investigate the program.

The Judiciary Committee held a second hearing in late February, including testimony from legal scholars such as former CIA Director James Woolsey and constitutional law expert Bruce Fein of Washington, D.C. Hours before the hearing began, the Washington Post reported that the attorney general sent a letter to the committee seeking to "clarify certain of my responses" at the earlier hearing.

The letter emphasizes that Gonzalez was speaking only about the terrorist surveillance program, saying, "I did not and could not address ... any other classified intelligence activities." He also said the DOJ's analysis of the program's legality "has evolved over time," prompting speculation that the administration put together the legal justification for the program after wiretapping had already started.

Sen. Robert Byrd (D-W.Va.) issued a statement asking, "Does it mean the administration's reliance on the use-of-force resolution to justify its snooping was simply a ploy, an 'after-the-fact' face-saving device ...?" Sen. Patrick Leahy (D-Vt.), ranking Democrat on the committee, said in his response to Gonzalez that "we need to know what other activities affecting Americans' rights you view as justified by the [use-of-force authorization] ."

Many legal scholars dispute the administration's claims and say warrantless surveillance is both illegal and unconstitutional. Specifically, they say, the program violates the Foreign Intelligence Surveillance Act (FISA), enacted in 1978 as part of a series of reforms after Congress discovered that the Nixon administration was directing the NSA to spy on American citizens.

In his ACLU statement, writer James Bamford recounted a case that came to light during the Nixon years, when investigators found out that the NSA planned to monitor a writer named David Kahn, up to and including breaking into Kahn's home. Bamford noted that he has often defended the NSA but that in the past, the agency had strong oversight. Now, he said, "the ACLU lawsuit seems like the only way to find out who's being targeted today."

Specter has introduced legislation that would amend FISA by easing the burdens the government would have to meet for a FISA warrant--but still requiring judicial approval and stringent congressional oversight.

Lawyer-blogger Glenn Greenwald said he welcomed the Specter proposal but added that any changes to FISA are immaterial: "The administration did not eavesdrop in violation of FISA because it believed that the FISA standards were too restrictive or that the FISA process was too cumbersome. It eavesdropped outside of FISA because it believes it has the power to eavesdrop (or do anything else relating to national security) in total secrecy, without any judicial or congressional oversight," he wrote on his "Unclaimed Territory" blog.

Beeson agreed. "This issue of expanded surveillance is really part of a broader picture of, for instance, using joint terrorism task forces to spy on political groups," she said. "We see all of this as connected."

Surveys have shown increasing public dissatisfaction with the surveillance program: A Zogby International poll conducted in January found that 52 percent of respondents agreed that Congress should consider impeachment proceedings against Bush if he authorized wiretapping of citizens without a warrant. And a February poll that was commissioned by the ACLU found that a majority of U.S. citizens oppose warrantless government surveillance.

Given this public mood, the flow of lawsuits may keep growing. And civil libertarians call that a good thing.

"From my perspective, I think the country is at stake," said Voorhees. "The question is, are we going to continue to live in the United States, or in an endlessly armed camp with the thought police looking over our shoulders?"