(Updated after the jump with extra surveillance goodness.)
We posted yesterday evening a summary of the latest events in Al-Haramain v. Obama, a much-watched suit challenging the Bush administration’s warrantless wiretapping program.
That prompted a response from Cindy Cohn, the legal director for San Francisco’s very own Electronic Frontier Foundation, which is involved in the consolidated wiretapping litigation here in federal court.
Cohn took issue with our statement that the Al-Haramain case, if it reaches the merits, could lead to a ruling on the constitutionality of the warrantless wiretapping regime, “something no other pending case will get a chance to address." Cohn said that was incorrect and pointed to three other cases, some of which she’s involved in, that are also challenging the constitutionality of the National Security Agency’s wiretapping adventures.
“Oh yeah?” we reply, after the jump.
While we’ll admit that Al-Haramain is not absolutely the only game in town, we’re still saying it’s the best game. That is, Al-Haramain v. Obama looks like the only case that is likely to get a chance to address the constitutionality of Bush administration wiretapping.
The three cases Cohn mentioned, Jewel v. NSA, Center for Constitutional Rights v. Bush, and Shubert v. Bush, are all different from Al-Haramain in one key respect. In Al-Haramain, the government accidentally turned over a classified document to the very organization they are alleged to have illegally wiretapped. Now that Judge Vaughn Walker, who is presiding over the consolidated wiretapping cases, has ordered the Al-Haramain case to proceed, it looks like the plaintiffs will finally get to use that document — apparently a summary of tapped phone conversations — to get at the legality of warrantless surveillance.
It appears, from Legal Pad’s review of some of the court filings,* that in the three cases Cohn mentioned, the plaintiffs essentially all allege that because they use electronic communications, they have a good reason to believe they have been spied on, or will be spied on. Though there are differences between all three, a similar claim brought by the American Civil Liberties Union was struck down by the Sixth Circuit U.S. Court of Appeals in October 2007. The court ruled that the plaintiffs had no standing to sue, because they couldn’t prove the government had spied on them. The ACLU’s appeal to the Supreme Court was denied on February 2008.
We update this update with this update:
LegalPad had an edifying phone call with Cohn this afternoon.
She conceded that, as far as she knows, the Shubert and Center for Constitutional Rights cases both make allegations similar to what the ACLU tried and failed to use before the Sixth Circuit. But Cohn’s explanation of the Jewel case piques our interest.
The EFF filed the Jewel case in late 2008 after realizing that its litigation in Hepting v. AT&T, the wiretapping suit against major telecommunication companies, faced a “multiyear detour” to decide the constitutionality of Congress’ FISA Amendments Act, which gives the telecoms retroactive immunity, Cohn said.
But with whistleblower evidence from former AT&T technician Mark Klein, Cohn said, the Hepting plaintiffs figured they could go straight at the government. In recent years, Klein has revealed that the National Security Agency installed “splitters” at an AT&T facility on San Francisco’s Folsom Street that siphoned electronic communications to the government.
“The law is broken the minute that the communications are intercepted by a device for a purpose other than just delivering your mail,” Cohn said. “So I don’t think we have a standing problem, because there is no state secret about the routing of my communications, because I’m not claiming that I’m a target, I’m claiming that everything that went through that system was sent to the government.”
If the EFF can prove that their clients’ communications were routed through the Folsom Street facility and that the device Klein described was actually installed, they can prove they were spied on, Cohn said.
But proving that Klein’s splitter really existed might be a problem. The government has never admitted it, Cohn said. Furthermore, government lawyers have made sovereign immunity arguments “broader than anything we saw out of the Bush administration” in a motion they recently filed to dismiss the Jewel case, she said.
Still, Cohn said, Walker gave the plaintiffs standing in the Hepting case, and it would “take a pretty significant shift in the judge’s views to find that we didn’t have standing in Jewel.”
— Evan Hill
*Legal Pad is not a lawyer, but we play one on the Internet.