Group challenging enhanced surveillance law faces uphill climb

By Ellen Nakashima
Washington Post Staff Writer
Monday, April 19, 2010

A group of lawyers, human rights activists and journalists argued in a federal appeals court on Friday that a 2008 update to U.S. surveillance law has made their e-mails and phone calls more susceptible to government interception and that, as a result, they are forgoing conversations and flying overseas rather than making phone calls or writing e-mails.

Those in the group are trying to show that they have suffered harm because of the revised law, which dropped a requirement that the government identify the subjects of its surveillance. The group must prove harm in order to challenge the law's constitutionality in federal court.

"By significantly increasing the likelihood that my communications will be acquired by the U.S. government, the new surveillance law compromises my ability to gather information that is relevant and necessary to my work," Joanne Mariner, director of the counterterrorism program at Human Rights Watch, said in a court filing with the U.S. Court of Appeals for the 2nd Circuit.

In an interview, Mariner said she made three trips to Jordan recently rather than speak by phone to former detainees of the CIA's rendition and detention programs. "I've gone to Egypt," she said, "or I'll meet people in Europe. It definitely adds a burden."

In 1978, Congress passed the Foreign Intelligence Surveillance Act, which ensured that Americans' communications would not be tapped in the course of intelligence investigations without a warrant. The law came in response to a string of abuses by government intelligence agents in the 1960s and 1970s that included spying on civil rights and antiwar activists.

After the Sept. 11, 2001, terrorist attacks, the National Security Agency undertook a secret program of enlarged surveillance that included monitoring Americans' communications without a court warrant when one party to a call or e-mail was suspected to be associated with terrorist activities. In 2007, more than a year after the New York Times revealed the program, the Justice Department announced that surveillance would be brought under court supervision. In 2008, Congress revised the 1978 law to include broader surveillance authority, after the government argued that technology had rendered its tools ineffective.

But the plaintiffs in the present case contend that the revision, known as the FISA Amendments Act, runs afoul of the Fourth Amendment's prohibition of "general warrants" and unreasonable searches. A threshold question, however, is whether the plaintiffs have "standing" to bring their challenge at all. The legal dispute turns on a 1972 Supreme Court case, Laird v. Tatum, involving a domestic intelligence-gathering program under the Army. The court said in that case that the plaintiffs lacked standing to sue "without more" evidence that the Army was investigating them.

The Obama Justice Department, citing Laird, said the plaintiffs cannot sue without proving their calls and e-mails are being monitored. Assistant Attorney General Tony West said in a court document that although the plaintiffs "may be at greater risk than the public at large of having their communications incidentally acquired . . . the threat that plaintiffs one day will be harmed . . . is conjectural or hypothetical."

A lower court agreed with the government. And Orin S. Kerr of George Washington University, an expert on surveillance law, said challenging such laws is difficult because of the need to prove one was surveilled. "It's very tricky in the national surveillance area because the surveillance is by its very nature secret," he said, "so standing problems are common."

"A ruling upholding the lower-court decision would shield the new statute from meaningful judicial review," said Jameel Jaffer, a lawyer with the American Civil Liberties Union, which is representing the plaintiffs.

Challenges to foreign-intelligence surveillance programs are unusual. One example is the case of the now-defunct al-Haramain Islamic Foundation, a Muslim charity in Oregon that the Treasury Department had listed as a terrorist organization. The foundation sued the government in 2006, alleging that it had wiretapped two of its lawyers, both U.S. citizens, without warrants. In that case, the plaintiffs used public records to prove that they had been wiretapped. One record was a speech by an FBI official noting that "surveillance" had been used in determining whether to designate al-Haramain a terrorist group. The judge found that they had standing.

Sylvia Royce, a Washington lawyer who has represented detainees from the military prisons at Guantanamo Bay, Cuba, and Bagram, Afghanistan, said she has tried to interview detainees' family members to explore whether detention was unjustified. "They're reluctant to open up," she said in an interview, adding that she thinks it is partly because she has cautioned them not to go into certain areas in too much detail over the phone.

Lawyers are bound by ethical rules to protect the confidentiality of information about their clients, said New York University law professor Stephen Gillers, who filed a declaration supporting the plaintiffs. "It's really quite simple," he said in an interview. "Every lawyer has to evaluate the risk of snooping, of eavesdropping, before communicating with a client or others about a client's matter, like witnesses or relatives. If the risks of discovery are great enough, the lawyer has to find a different method for communicating."

If lawyers such as Royce were to ask him what their duty was, he said, given the clients' identity and the government's claimed powers, "I would say, 'Don't use the phone or the Internet to communicate with your clients or others about the case.' "

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