Monday, September 11, 2006

Top NSA Case Moves Forward in PDX; Laywer Comments to LO

As I mentioned yesterday, a case being heard in Oregon but which reaches far beyond the Beaver state had a major ruling last week: Judge Garr King of US District Court in Portland ruled that in the case of Al-Haramain Islamic Foundation, Inc. v GEORGE W. BUSH, President of the United States (et al), the government's motion to either dismiss the case outright or declare a favorable summary judgement without trial would be denied. The administration's claim of the state secrets privilege was rejected in part, enough so to allow hearings to continue.

Here's why: unique among the anti-NSA cases being prosecuted around the country, the al-Haramain case contains a smoking gun--the FBI record of surveillance done on conversations between the members of the charity and their lawyers. The document was accidentally released to lawyers and subsequently the media, and the charity members (both on special "designated global terrorist" lists) became apprised of the surveillance being done on them.

This is big for two reasons: first, it is very hard to get a favorable ear in the courts without specific harm having been done to the actual plaintiffs. ACLU cases often fail on their hypothetical nature, for want of a citizen specifically deprived of his rights via a "chilling effect." But in the al-Haramain case, the document records the surveillance that was done without proceeding through the FISA courts. Secondly, the mere existence of the document proves as a generality for all NSA cases that unwarranted surveillance was factually occurring. It, along with the admissions made within the administration after the story broke, provides the legal foundation for declaring the program illegal--look, this is how it was done, that doesn't follow the law, ergo it's illegal...right?

So the government's argument was that state secrets really should protect the trial from even happening, and it certainly decimates the plaintiffs' case. King said, not so much:
...the purpose of plaintiffs’ suit is not to “establish a fact that is a state secret.” The government has lifted the veil of secrecy on the existence of the Surveillance Program and plaintiffs only seek to establish whether interception of their communications–an interception they purport to know about–was unlawful. As I explained above, if plaintiffs are able to prove what they allege–that the Sealed Document demonstrates they were under surveillance–no state secrets that would harm national security would be disclosed. Accordingly, while this Court may eventually terminate some or all of plaintiffs’ claims, this case should not be dismissed outright because the very subject matter of the case is
not a state secret.
Through good fortune I became acquainted with one of the attorneys handling the case for al-Haramain, local product Ashlee Albies. Albies also works with the Center for Constitutional Rights (CCR) in New York, on NSA wiretap issues. I spoke with her at some length on Friday after the ruling was announced.

While one expects that the lawyers will always make the ruling sound like exactly what they wanted, Albies seemed genuinely well-satisfied with it--confident that it was the only sensible ruling, but mindful that some level of judicial courage was involved in aceding to their arguments. "It's clearly not something the judge took lightly, and by admitting and reading the in camera ex parte documents the government gave him, he forced the government to back up their conclusions on what was privileged. I think you're starting to see changes regarding the blanket approval of 'state secrets,'" in favor of angles such as King took, to allow use of non-sensitive portions while excluding anything that need not be revealed for the case to be tried.

I asked whether she expected the government to re-seek judgement or dismissal (as the judge allowed them to do), and she said yes: "There are three provisions that would cause dismissal, and they've only tried one so far, so..." (To help guide us laymen, here are the three provisions Albies is referring to):
The state secrets privilege may require dismissal of a case for any of three reasons:
    (1) if specific evidence must be removed from the case as privileged, but plaintiff can no longer prove the prima facie elements of the claim without that evidence;
    (2) if the defendant is unable to assert a valid defense without evidence covered by the privilege;
    (3) even if the plaintiff is able to/produce nonprivileged evidence, the “very subject matter of the action” is a state secret.
Courts have characterized outright dismissal of a suit based on the state secrets privilege as a “drastic” and “draconian” remedy. Indeed, one court has noted that “whenever possible, sensitive information must be disentangled from nonsensitive information to allow for the release of the latter.” Ellsberg, 709 F.2d at 57.
I asked which amendments to the Constitution the case was alleging violations on--the 1st, 4th and 6th. I found the charge on grounds the government violated the attorney-client privilege to be most apt. Because the charity members' conversations were with their lawyers, not only was it illegal to do it without a warrant, but the government was listening in on discussions between clients and their lawyers--which is a huge no-no.

Depending on what the government's response is to the ruling, Albies hopes the next phase will be the discovery conference, when both sides hash out what documents and testimony will be allowed. Left relatively unmentioned in her happiness that the case is going forward, was a little frustration about having the "Sealed Document" (ie, the FBI document denoting the surveillance) continue to be withheld from discovery, among other related documents the government is fighting release of. Even the location of the document is at issue; it has its own rules of protocol and safety, and typically would need to be held in a fully secured facility such as the one in Seattle.

Turns out Portland doesn't have one of those yet. Darn Seattle--better than us again!* The document was originally being kept under FBI supervision in Portland, but after conflict of interest objections, was quietly driven to Seattle. Since that time, an agreement was reached to put the document in a locked bag with access only for the judge and a special judicial security officer, and the file once again rests in Portland. (Take that, Pugetonians!)

The notion Albies provided in her discussion of the case with me--that with this ruling there now appears to be a trend away from summarily granting the concept of "state secrets"--was backed up Friday at
With nearly two dozen suits now before a well-regarded Republican appointee who has dismissed both the government's state-secrets claim and AT&T's attempt to show its customers didn't have standing to sue, even some ardent supporters of the NSA program have had to concede that, for the moment, the legal tide has turned against them.

"Judge Walker has a very good reputation," says Richard Samp of the conservative Washington Legal Foundation, which has filed an amicus brief on the government's side in the ACLU's suit in Michigan. "And that reputation is demonstrated by the fact that he was the one who was assigned the multidistrict litigation. All the more reason why a generally liberal appeals court like the 9th Circuit might be reluctant to overturn him on state secrets."

"I think that the lesson to be learned is, they thought state secrets would be a magic wand that would protect anything and everything that they wanted to do," says Cindy Cohn, a lawyer for the Electronic Frontier Foundation involved in the suit in San Francisco. "And it would be wise to ratchet down their thinking about the amount of power they have to keep things from the judiciary."
We'll continue to follow the progress of the trial; Albies is hopeful that it will not drag out excessively. There was some worry that pretense towards resolution in Congress was slowing down cases; Albies suggested that one of the other NSA cases being litigated by CCR was being delayed by a judge who was waiting for just such a resolution to take him off the hot seat. But with the news that prominent Republicans such as John Warner and Lindsey Graham object to Arlen (Phil) Specter's supplicant "Ah, Then Just Go Ahead and Wiretap Us Act," the window judges were seeking to abrogate responsibility on the issue may have closed. As major developments arise, we'll check back in with Albies for the insider's take, so keep reading...

*Portland's facility IS secure, in fact. It was simply its location within FBI offices that initially made it unsuitable to the plaintiffs, not any perceived lack of security on the part of the courts or the parties. LO regrets the error.