Moving Day for Anti-Spying Lawsuits?

The Center for Constitutional Rights which is suing the government directly over its warrantless wiretapping, arguing that the program infringes on the Center's ability to talk candidly with the Guantanamo detainees, their families and overseas witnesses. That lawsuit is progressing in New York District court, but may be consolidated with other cases in San Francisco.

Shayana Kadidal spoke with Wired News about the effect of provisions in Senator Arlen Specter's National Security Surveillance Act on CCR's case (Text, News Story).

One portion of that bill allows the Attorney General to move court challenges to government surveillance programs to the little known Foreign Intelligence Surveillance Court of Review. Normally, warrants issued to spy on suspected terrorists and spies are submitted to the Foreign Intelligence Surveillance Court, which has approved some 99.995 percent of applications. The Review Court, made up of three judges hand-picked by the Supreme Court Justice, has only met once since it was established in 1978. That hearing involved a challenge to the lower courts ruling on the separation of wiretaps for intelligence and criminal investigations (known as "The Wall") and found for the government.

The transfer provision would move us in front of the three FISA Court of Review judges, who are all Republicans. If our cases were transferred randomly to FISA judges, there are 10 of them, some of them Democrats.

But two [FISA review court judges] are smart academic types so they may surprise everyone with anti-administration rulings. But this isn't a crap shoot, by moving to the FISA Court of Review, you get a panel of three Republicans.

Are there other changes in the bill that would affect lawsuits against government spying?

The other problem is that under another provision of the bill the government can seek approval of programs for 90 day periods of time. So what they will do is submit this program for approval and they will get it because the FISA court basically never rejects anything. Itøs totally ex parte and nobody else will ever be discussing it from the outside or know what happens but once that happens, you have problems with statutory types of claims [lawyer speak for suing to stop a breach of your rights].

[Program approval] doesn't seem to have retroactive implications, but a lot of the meat of this discussion of whether this program complies with the Fourth Amendment et cetera then disappears into a black hole with this ex parte proceeding where the government is the only party.

Will the secret court allow both the plaintiff and government defendants to argue? The only time this court met before, only the government lawyers got to argue [though outside groups did file amicus briefs contesting the government's arguments].

A lot of people are assuming that that's going to be an ex parte proceeding because those are the only kinds of proceedings right now that the FISC hears, the government goes and applies in a district court for a warrant, so its only one party, but the language of specters bill and the statements he's made about the bill don't indicate it will be an ex parte proceeding

. Given that courts are already hearing and deciding cases filed against the NSA and telecoms, why is Specter, who is no fan of these programs, pushing this legislation?

The idea Specter had is that it is easier for these guys to handle the classified information because they are set up for it. Whether that true or not, this court has only heard one case in its existence as far as anyone knows.

But when he talks about a deal, the only deal aspect is that the cases get to continue in the FISA court of review and theoretically and maybe if that court is more capable of seeing classified info and keeping it secret, may be there will be a little more search and review of what the government is actually doing. Maybe those three judges will feel comfortable saying you have to give us more information because they are capable of keeping it secret, countering the silly argument that the government makes in all these cases that these district judges that are supposed to be the guardians of the guardians are somehow less trustworthy than some low level spook in the NSA apparatus.

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