Rights Group in Catch-22 of How to Prove It Was Targeted by Wiretapping Secret Program

NEW YORK and SAN FRANCISCO - Last night the first brief was filed in the appeal in CCR v. Obama, a lawsuit brought by the Center for Constitutional Rights (CCR) against the Bush administration in 2006 to challenge the legality of the National Security Administration’s (NSA) warrantless wiretapping program. The suit originally sought an injunction ordering the government to end the program, and in response to this and other litigation, the government claimed to have shut down the program by 2007. In the remaining part of the case, CCR asked the court to order the government to destroy any records of surveillance of the plaintiffs—CCR attorneys and legal staff who feared that their phone calls and emails were subject to surveillance under the program.

The government argued that CCR did not have standing to sue because the Center lacked evidence that its staff and attorneys had actually been surveilled (and could not obtain or use such evidence in the court proceedings because such evidence would be a “state secret”). The lower court agreed, holding that, even though “plaintiffs appear to have established that their litigation activities have become more costly due to their concern about [possible surveillance under the NSA program],” plaintiffs could not sue without proof that they had actually been eavesdropped upon. That ruling is now under appeal to the Court of Appeals for the Ninth Circuit.

“The Obama administration has never taken a position – in this or any of the other related cases – on whether the Bush administration’s NSA surveillance program was legal. Instead, it fought to keep this case out of court on the Catch-22 argument that no one can ever prove they were targeted by a secret program,” said CCR Senior Attorney Shayana Kadidal. “Despite considerable public evidence that attorneys were targeted by the program, the court refused to even order the minimum relief we sought—an order that the government destroy any records of this illegal surveillance that it still retains. It is astonishing that President Obama’s administration continues to fight to hold on to the fruits of a patently illegal surveillance program, even where that surveillance was directed at attorneys engaged in suing the government.”

In its briefs, the government acknowledged that it would be a “reasonable inference” to conclude from statements of government officials “that some attorney-client communications may have been surveilled under” the NSA program.

CCR v. Bush was filed against President George W. Bush, the head of the National Security Agency (NSA), and the heads of the other major security agencies, challenging the NSA's warrantless surveillance of people within the United States. As was widely reported, the NSA, for more than four years and with the approval of President Bush, engaged in a widespread program of warrantless electronic surveillance of telephone calls and emails in violation of the Foreign Intelligence Surveillance Act (FISA). FISA explicitly authorizes electronic surveillance for the purposes of collecting foreign intelligence only upon orders issued by federal judges who sit on a special court. It expressly authorizes warrantless wiretapping only for the first fifteen days of a war and makes it a crime to engage in wiretapping without specific statutory authority. Rather than seeking to amend the statute, President Bush simply violated it.

CCR filed the suit on its own behalf and on behalf of CCR attorneys and legal staff representing clients who fit the criteria described by Attorney General Gonzales for targeting under the NSA surveillance program. CCR has represented, among others, men detained indefinitely without charge at Guantánamo Bay; Maher Arar, a Canadian citizen who was wrongly accused of al Qaeda ties and then rendered from the United States to Syria for the purpose of being interrogated under torture; and Muslim immigrants unreasonably and wrongfully detained in the U.S. for months without probable cause or criminal charges in the wake of 9/11. CCR has been one of the most active opponents of the illegal detention, torture and intelligence-gathering practices instituted post-9/11. In the course of representing these clients, CCR’s lawyers engaged in telephone calls and emails with people outside of the U.S., including clients, clients' families, outside attorneys, potential witnesses and others.

For more information visit the CCR v. Bush case page.

The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change. Visit www.ccrjustice.org. Follow @theCCR.