NYT : Ruling Blocks Challenge to Wiretapping

Ruling Blocks Challenge to Wiretapping

By ERIC LICHTBLAU | November 16, 2007

WASHINGTON, Nov. 16 — A federal appeals court said today that secrecy laws forced it to exclude critical evidence about the National Security Agency’s domestic eavesdropping program from being used by an Islamic charity in a lawsuit even though the mere existence of the program could no longer be considered a “state secret.”

The complex ruling was a victory for the Bush administration and signaled trouble for civil rights groups that are trying to show that the eavesdropping program was unconstitutional and to hold telecommunications companies liable for carrying it out.

The Al-Haramain Islamic Foundation, a charity in Oregon, had perhaps the best evidence of anyone that it had been a target of the wiretapping program, based on a top secret document mistakenly given to the group in 2004.

But the ruling by the United States Court of Appeals for the Ninth Circuit, based in San Francisco, found that evidence about the document could not be introduced in court because it fell under the “state secrets” privilege invoked by the government. The court, reversing a lower court ruling, said the trial judge had made “a commendable effort to thread the needle” but that its final ruling in allowing the evidence was flawed.

However, the appeals court split off from its ruling a separate claim made by more than 40 groups against the telecommunications companies, and it has yet to rule on whether those lawsuits were covered by the state secrets privilege as well.

A lawyer for the group leading that part of the lawsuit, the Electronic Frontier Foundation, said in an interview that he was heartened by the appeals court’s clear rejection of the government’s claim everything involved in the eavesdropping program should be considered a state secret. That could bode well for the remaining piece of the case, said the lawyer, Kevin Bankston.

Indeed, the appeals court spent most of its 27-page ruling explaining why the eavesdropping program should not be considered a state secret. It listed numerous public statements, including those by President Bush, former attorney general Alberto R. Gonzales, and the director of the Central Intelligence Agency, Michael V. Hayden, about details of the program. And it said: “In light of extensive government disclosures” about the Terrorist Surveillance Program, “the government is hard-pressed to sustain its claim that the very subject matter of the litigation is a state secret.”

The judges on the panel were M. Margaret McKeown, Michael Daly Hawkins and Harry Pregerson. Judges McKeown and Hawkins were nominated by President Bill Clinton, which Judge Pregerson was a nominee of President Jimmy Carter.

In presenting the charity case before the lower court, its lawyers had also argued that warrantless eavesdropping of telephone conversations between its directors and lawyers violated the Foreign Intelligence Surveillance Act, which established a secret court to issue top secret surveillance warrants authorized by a judge, The Associated Press reported.

Today, the appeals court did keep the charity’s lawsuit alive, if barely, by sending the lawsuit back to a trial court in Portland, Ore., to determine if that law governing the wiretapping of suspected terrorists trumps the state secrets law.

The appeals court said that “the F.I.S.A. issue remains central to Al-Haramain’s ability to proceed with this lawsuit.”

IHT : U.S. Democrats seem ready to extend wiretap powers

U.S. Democrats seem ready to extend wiretap powers

By Eric Lichtblau and Carl Hulse | October 8, 2007

WASHINGTON: Two months after insisting that they would roll back broad eavesdropping powers won by the Bush administration, Democrats in Congress appear ready to make concessions that could extend some crucial powers given to the National Security Agency.

Administration officials say they are confident they will win approval of the broadened authority that they secured temporarily in August as Congress rushed toward recess. Some Democratic officials concede that they may not come up with enough votes to stop approval.

As the debate over the eavesdropping powers of the National Security Agency begins anew this week, the emerging measures reflect the reality confronting the Democrats.

Although willing to oppose the White House on the Iraq war, they remain nervous that they will be called soft on terrorism if they insist on strict curbs on gathering intelligence.

A Democratic bill to be proposed on Tuesday in the House would maintain for several years the type of broad, blanket authority for NSA eavesdropping that the administration secured in August for six months.

In an acknowledgment of concerns over civil liberties, the bill would require a more active role by the special foreign intelligence court that oversees the interception of foreign-based communications by the security agency.

A competing proposal in the Senate, still being drafted, may be even closer in line with the administration plan, with the possibility of including retroactive immunity for telecommunications utilities that participated in the once-secret program to eavesdrop without court warrants.

No one is willing to predict with certainty how the question will play out. Some congressional officials and others monitoring the debate said the final result might not be much different from the result in August, despite the Democrats' insistence that they would not let stand the extension of the powers.

"Many members continue to fear that if they don't support whatever the president asks for, they'll be perceived as soft on terrorism," said William Banks, a professor who specializes in terrorism and national security law at Syracuse University and who has written extensively on U.S. wiretapping laws.

The August bill, known as the Protect America Act, was approved in the final hours before Congress went on its summer recess after heated warnings from the administration that legal loopholes in wiretapping coverage had left the country vulnerable to another terrorist attack. The measure significantly reduced the role of the foreign intelligence court and broadened the security agency's ability to listen to foreign-based communications without court warrants.

"We want the statute made permanent," a spokesman for the Justice Department, Dean Boyd, said Monday. "We view this as a healthy debate. We also view it as an opportunity to inform Congress and the public that we can use these authorities responsibly. We're going to go forward and look at any proposals that come forth. But we'll look at them very carefully to make sure they don't have any consequences that hamper our abilities to protect the country."

House Democrats overwhelmingly opposed the bill in August and said the administration had been forced them into a corner.

As Congress takes up the new bills, a senior Democratic aide said, House leaders are working hard to ensure that the administration does not succeed in pushing through a bill that would make permanent all the powers it secured in August.

"That's what we're trying to avoid," the aide said. "We have that concern too."

The bill to be proposed on Tuesday by the Democratic leaders of the House Intelligence and Judiciary Committees would impose more controls over the powers of security agency, including quarterly audits by the Justice Department inspector general. The measure would also give the foreign intelligence court a role in approving, in advance, "basket" or "umbrella" warrants for bundles of overseas communications, a congressional official said.

"We are giving the NSA what it legitimately needs for national security but with far more limitations and protections than are in the Protect America Act," said Brendan Daly, a spokesman for Speaker Nancy Pelosi, Democrat of California.

Perhaps most important in the eyes of Democratic supporters, the House bill would not give retroactive immunity to the telecommunications utilities that participated in the eavesdropping. That has been a top priority of the administration. The temporary measure gave the utilities immunity for future acts, but not past deeds.

Private groups are trying to prove in federal court that the utilities violated the law by participating in the program.

A former senior Justice Department lawyer, Jack Goldsmith, seemed to bolster their case last week when he told Congress that the program was a "legal mess" and strongly suggested that it was illegal.

The House bill would also require the administration to disclose details of the program. Democrats say they plan to push the administration to turn over internal documents laying out the legal rationale for the program, something the administration has refused to do.

In the Senate, the chairman of the Intelligence Committee, John Rockefeller IV, Democrat of West Virginia, is working with his Republican counterpart, Christopher Bond of Missouri, a main proponent of the August plan, to come up with a compromise.

Wendy Morigi, a spokeswoman for Rockefeller, said that retroactive immunity for the utilities was "under discussion" but that no final proposal had been developed.

The immunity issue may prove to be the crucial sticking point between whatever proposals the House and Senate ultimately pass. Representative Jerrold Nadler, a New York Democrat who was among the harshest critics of the temporary bill, said in an interview he would vigorously oppose any effort to grant retroactive legal protection to telecommunications utilities.

"There is heavy pressure on the immunity, and we should not cave an inch on that," Nadler said.

Nadler said that he was worried the Senate would give too much ground to the administration in its proposal, but that he was satisfied with the bill to be proposed on Tuesday in the House.

"It is not perfect, but it is a good bill," he said. "It makes huge improvements in the current law. In some respects it is better than the old FISA law," a reference to the foreign intelligence court.

Civil liberties advocates and others who met House officials on Monday on the proposed bill agreed that it was an improvement over the August plan but were less charitable in their overall assessment.

'This still authorizes the interception of Americans' international communications without a warrant in far too many instances, and without adequate civil liberties protections," said Kate Martin, director of the Center for National Security Studies, who was in the group that met House officials.

Caroline Frederickson, director of the Washington legislative office of the American Civil Liberties Union, said she was troubled by the Democrats' acceptance of broad, blanket warrants for the security agency rather than the individualized warrants traditionally required by the intelligence court.

"The Democratic leadership, philosophically, is with us," Frederickson said. "But we need to help them realize the political case, which is that Democrats will not be in danger if they don't reauthorize this Protect America Act. They're nervous.

"There's a 'keep the majority' mentality, which is understandable," she said, "But we think they're putting themselves in more danger by not standing on principle."

WaPo : Democrats to Offer New Surveillance Rules

Democrats to Offer New Surveillance Rules

Bill Aims to Meet Privacy and Security Concerns; Fierce Debate Is Expected

By Ellen Nakashima | Washington Post Staff Writer | October 7, 2007

House Democrats plan to introduce a bill this week that would let a secret court issue one-year "umbrella" warrants to allow the government to intercept e-mails and phone calls of foreign targets and would not require that surveillance of each person be approved individually.

The bill is likely to resurrect controversy that erupted this summer when Congress, under White House pressure, rushed through a temporary emergency law that expanded the government's authority to conduct foreign surveillance on U.S. soil without a warrant. The Protect America Act, which expires in February, has been criticized as being too broad and lacking effective court oversight.

The Democrats' legislation, drafted by the Intelligence and Judiciary committee chairmen, is aimed to reconcile civil liberties, privacy and national security concerns. It would overhaul the Foreign Intelligence Surveillance Act (FISA), a 1978 law amended many times that the Bush administration argues has been outstripped by technology.

"Some conservatives want no judicial oversight, and some liberals oppose any notion of a blanket order," said James X. Dempsey, Center for Democracy and Technology policy director. "So the challenge of the Democratic leadership is to strike a balance, one that gives the National Security Agency the flexibility to select its targets overseas but that keeps the court involved to protect the private communications of innocent Americans."

The bill would require the Justice Department inspector general to audit the use of the umbrella warrant and issue quarterly reports to a special FISA court and to Congress, according to congressional aides involved in drafting the legislation. It would clarify that no court order is required for intercepting communications between people overseas that are routed through the United States. It would specify that the collections of e-mails and phone calls could come only from communications service providers -- as opposed to hospitals, libraries or advocacy groups. And it would require a court order when the government is seeking communications of a person inside the United States, but only if that person is the target.

A target is defined as a person, group, cell or government of interest to a foreign intelligence investigation.

"Democrats have made huge strides in making improvements over the Protect America Act," said Tim Sparapani, senior legislative counsel for the American Civil Liberties Union. "Yet we think that the Constitution requires as a minimum that an individualized warrant is required whenever an American's communications are targeted. This is going to be the big sticking point."

Democrats are wary of being called weak on national security. That concern is exacerbated by the government's withholding of details on its surveillance activities that would enable Congress to gauge whether expanded powers are needed, said Mark Agrast, senior fellow at the Center for American Progress.

The bill would not include a key administrative objective: immunity for telecommunications firms facing lawsuits in connection with the administration's post-Sept. 11 surveillance program. House Democrats have said that as long as the administration withholds requested documents explaining the basis for the warrantless surveillance program, they cannot consider immunity for firms alleged to have facilitated it.

The White House on Friday evening told the chairmen of the Senate and House intelligence and judiciary committees that it would put together that information by Oct. 22 but would not say when or whether it would make the information available to lawmakers.

"We have told the White House for weeks that the House plans to consider FISA legislation on October 17," said a senior Democratic congressional aide involved in the White House negotiations. "How can members of Congress consider any proposal for immunity if the documents relating to the company's conduct aren't even being assembled by White House lawyers until October 22?"

In the Senate, Democrats are working with Republican colleagues on a bill to be introduced this month that probably will contain some form of relief for telecom companies -- an issue that was sidestepped in August to help win passage of the Protect America Act.

Four possibilities are being discussed, said a Senate aide familiar with the discussions. The broadest would be blanket immunity, which would immunize anyone, including government officials, who had anything to do with any surveillance program. That is the approach the government favors and is strongly opposed by civil liberties advocates.

The second is targeted immunity, in which companies that can prove they were acting in good faith would be granted immunity from prosecution. The third is substitution, in which the government would replace the defendant in the lawsuit. Finally, there is indemnification. The cases would proceed through the court system, and if there were financial penalties, the government would assume them, the aide said.

Aides spoke on condition of anonymity because they are not authorized to speak on the record.

Adding a new perspective on the debate, a group of prominent computer scientists from organizations including Sun Microsystems, Columbia University and the University of Pennsylvania recently warned that the current emergency law opens doors to the interception of purely domestic communications without a warrant. The computer scientists are concerned that the government's actions could threaten the privacy and security of U.S. communications.

Administration officials have testified that any information gathered that involves an American who is not a target will be "minimized" -- their identities blacked out -- so that their privacy is protected.

Michael Sussmann, a partner at Perkins Coie in Washington who represents communications providers, said carriers that are alleged to have participated in the government's warrantless surveillance program want immunity to halt pending cases, while those who did not are either agnostic or do not want their competitors to get a free pass.

"It's a tough call," he said. "If they were breaking the law, it was not out of any greed -- there was no remuneration or benefit to their business. It was from a sense of patriotism and interest in protecting against terrorist attack."