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from: Wired

Nation’s Soul Is at Stake in NSA Surveillance Case

By Jennifer Granick
August 15, 2007

Today the U.S. 9th Circuit Court of Appeals in San Francisco is hearing arguments on two of the most important cases in decades dealing with the rule of law and personal privacy.

The cases are Hepting v. AT&T and Al-Haramain Islamic Foundation v. Bush. At stake is whether the government can immunize itself from public oversight and prosecution for illegal activities by claiming that whatever actions it took were done in the name of national security. These cases will also influence whether the government is entitled to warehouse citizen phone calls and e-mails for subsequent unsupervised searching and data mining.

(Disclosures: During the trial court proceedings, law professor Susan Freiwald and our Stanford Center for Internet and Society filed a law professors’ amicus brief on behalf of the plaintiffs in Hepting. Wired News has also filed motions to intervene in the case and asked the court to make public evidence filed under seal of AT&T’s alleged wiretapping activities. In September of this year, I will join Hepting plaintiffs’ counsel the Electronic Frontier Foundation as Civil Liberties Director.)

The plaintiffs in the Al-Haramain case include a charity that claims the government illegally wiretapped calls between itself and its lawyers. During the litigation, the government turned over a document that proved, the plaintiffs say, that the charity was indeed surveilled without a warrant. The government claimed the document was classified top secret and asked the plaintiffs to return it. However, the lawyers still remember what the document said. Now the government wants to prevent the lawyers from using their own memories to prove that the charity was indeed monitored and therefore has the right to sue.

The trial court in Oregon ruled in favor of the plaintiff (.pdf), leading the government to appeal. On appeal, Al-Haramain’s attorney Jon B. Eisenberg was required to write his appellate brief at government offices and was not permitted to retain a copy of his own document, nor will he be allowed to see the government’s reply to his arguments.

Hepting is a class action against AT&T claiming that the telecommunications provider diverted the entire stream of customer communications to the government. The case makes no claims about, nor depends on what the government did with that information. The Department of Justice has argued that merely confirming or denying that AT&T’s surveillance takes place could aid terrorists by letting them know what forms of communication are monitored. U.S. District Court Judge Vaughn Walker rejected this argument (.pdf), pointing to voluntary statements by the government and AT&T that he says are adequate to let the case go forward. The Hepting and Al-Haramain rulings are consolidated in today’s hearing.

The appeal takes place in a strange legal climate. The government recently convinced the U.S. 6th Circuit Court of Appeals to dismiss an ACLU lawsuit (.pdf) on the grounds that the plaintiffs could not prove that they were spied upon. At the same time the government has attacked lawsuits and investigations by state government officials on the grounds that the states do not have the right to prove that the public communications carriers were monitoring on behalf of the government, because that information is a state secret.

Meanwhile, the Bush administration continues to disclose additional information about its surveillance activities when it thinks doing so helps its cause. In late July of this year, the White House voluntarily revealed that not only was the National Security Agency intercepting phone calls and e-mails into and out of the United States, under the so-called Terrorist Surveillance Program, or TSP, but that the agency also was data mining troves of American’s phone and e-mail records.

This revelation came as the White House was trying to defend embattled Attorney General Alberto Gonzales against accusations of misleading Congress. Gonzales had claimed that a 2004 dispute between the Justice Department and the White House over a top secret surveillance program wasn’t about the TSP at all. The new information allows defenders of Gonzales to maintain that his sworn testimony was true, if legalistic. But it also should give the 9th Circuit pause about over-crediting administration assertions of secrecy.

Last week Congress altered the Foreign Intelligence Surveillance Act in broad ways that purport to allow the government to collect the international communications of all Americans. Once this information is collected, the administration receives a great deal of discretion over which of those communications it actually listens to. Hopefully, but unlikely, Congress will allow the law to sunset in six months because it essentially removes future judicial oversight of surveillance activities conducted in the name of foreign intelligence. This is the same result the government is seeking before the 9th Circuit today, but effectuated by statute rather than by judicial opinion.

Supporters of the Bush administration’s position on warrantless surveillance are often heard arguing that we must use any means necessary to fight terrorism. But “any means necessary” is not the guiding principle of a civilized, democratic nation, especially when the tools we are implementing are often more distracting than effective — never mind “necessary.” When the 9th Circuit rules in these two cases, we will find out if we are a nation at risk of losing its soul, or one that will be governed by the rule of law, and will seek to protect people from arbitrary and harmful government monitoring.

Jennifer Granick is executive director of the Stanford Law School Center for Internet and Society, and teaches the Cyberlaw Clinic.