When the New York Times broke the story of the original NSA warrantless surveillance program in December of 2005, CCR’s legal staff realized that many of our international communications in the course of our work had been, and would be, subject to government surveillance entirely outside of judicial supervision. The threat posed by this surveillance forced CCR staffers to change their international communications practices—preventing some communications entirely, delaying others, and sometimes requiring costly international travel to replace calls and emails. It imposed costly burdens to investigate and take stock of potential past breaches of confidences. It also dissuaded third parties from communicating with and working with CCR because of the fear that their communications with us might be intercepted under the Program—reactions that were entirely independent of our voluntary actions. Moreover, the threat that the government has stored records from that surveillance continues to this day.
In the summer of 2008, Congress enacted the FISA Amendments Act (FAA) after then-Senator Obama switched positions and agreed to vote for the bill. The FAA completely dismantled the target-by-target formula for surveillance under the FISA statute that previously restricted foreign intelligence surveillance by demanding that the government seek judicial warrants to conduct surveillance on certain international communications. CCR and its staffers continue to be injured in the same ways from the threat of similarly broad surveillance under the Congressionally-authorized FAA as they were under the patently illegal NSA Program. If anything, the FAA allows for broader surveillance, for it allows the government to obtain judicial authorization for whole programs of surveillance with only the thinnest veneer of judicial supervision. As the Court of Appeals for the Second Circuit characterized it:
Prior to the FAA, surveillance orders could only authorize the government to monitor specific individuals or facilities. Under the FAA, by contrast, the plaintiffs allege that an acquisition order could seek, for example, “[a]ll telephone and e-mail communications to and from countries of foreign policy interest—for example, Russia, Venezuela, or Israel—including communications made to and from U.S. citizens and residents.” Moreover, the specific showing of probable cause previously required, and the requirement of judicial review of that showing, have been eliminated.
This is especially significant for CCR because, for most of our clients, the government has conspicuously failed to produce any evidence substantiating links between them and terrorism or other criminal activity. But under the FAA even innocent victims of human right violations or third-party witnesses to the same could be targeted for surveillance. Moreover, there is no provision for ongoing judicial review of the results of the surveillance to ensure that legally privileged communications (like conversations of attorneys with their clients, or with witnesses, experts, etc.)—what is called “minimization” in surveillance parlance.
Less than an hour after President Bush signed the 2008 amendments, the ACLU filed a lawsuit challenging the law’s constitutionality. The case, Amnesty Int’l USA v. Clapper, was filed on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations whose work requires them to engage in sensitive and sometimes privileged telephone and e-mail communications with persons outside the United States. The government moved to dismiss, arguing that people claiming harm from the need to avoid a secret surveillance program must first prove that they were actually surveilled (or face an near-certain imminent threat of the same). The ACLU lost at the trial court level but won at the Court of Appeals. The government asked the Supreme Court to review the case and it agreed to hear the case on October 29, 2012.
CCR filed an amicus (“friend of the court”) brief in the ACLU case on September 24, 2012, on behalf of itself and four human rights lawyers who routinely work on national security cases – Tina Foster, Ramzi Kassem, Candace Gorman, and Thomas H. Nelson. The brief argued that:
"Amici are … engaged in litigation representing foreign nationals located abroad in cases implicating national security and/or allegations of terrorist activity. As a result, like the plaintiffs in this case, they too have reasonable fears that their privileged communications are at risk of interception under surveillance authorized by the FISA Amendments Act of 2008 (“FAA”), and have been forced to take costly and burdensome countermeasures to minimize that risk.
…While the government failed to challenge the factual averments of injury by plaintiffs below, it now attempts to do so on appeal, and several Second Circuit judges cast doubt on them in dissenting from denial of en banc review. Amici therefore make this primarily empirical submission to demonstrate that plaintiffs’ fears are both widespread among the small group of lawyers engaged in litigation against the government in national security cases, and reasonable. So, too, are the countermeasures plaintiffs have adopted to protect against the risk of surveillance—indeed, for attorneys they are mandatory. The need to protect against the potential harm from surveillance under the FAA is particularly great given the absence of any judicially-supervised minimization that might otherwise protect plaintiffs’ legally privileged communications. That is sufficient to satisfy the existing law of standing, which demands only that avoidance injuries be a consequence of objectively reasonable fears of concrete, objective harm—dual requirements which in tandem will more than adequately protect against judicial overreach in chilling-effect cases.
… The government argues that challenges to surveillance programs should meet a unique, heightened standing threshold. If anything, the opposite should be true: surveillance policies that hamstring those few attorneys engaged in the task of ensuring executive accountability by bringing claims before the judiciary are worthy of more thorough scrutiny from the federal courts, not less. Closing the courthouse doors to such claims risks a systemic harm: a corrosion of the ability of the judiciary to confront other unlawful behavior of the executive."
CCR filed our challenge to the NSA Program, now titled CCR v. Obama, in 2006 within weeks of the New York Times story and continues to litigate it today, but our pending appeal to the Ninth Circuit was put on hold pending the Supreme Court’s decision in Amnesty.