Orwellian opinion

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George Orwell could not have improved upon the opinion of Judge Alice M. Batchelder of the U.S. 6th Circuit Court of Appeals in American Civil Liberties Union v. National Security Agency (July 6, 2007), a decision which fits comfortably within the pages of “1984.”

The opinion pivoted on a technical jurisdictional issue lawyers call “lack of standing,” i.e., the asserted failure of the plaintiffs to allege the defendants’ challenged conduct had caused them concrete injury that would be cured by a ruling in their favor. Without standing, a plaintiff cannot contest the legality of government action in federal courts. Thus, in denying standing in ACLU premised on the belief President Bush and his spy agencies are angels, Judge Batchelder fled from a judicial determination of the constitutionality of the post-September 11, 2001, domestic warrantless surveillance program (WSP). It is operated by the National Security Agency (NSA) and targets American citizens on American soil on the president’s say-so alone in contravention of the Foreign Intelligence Surveillance Act of 1978 (FISA).

Whereas FISA requires a warrant issued by an independent and impartial federal judge based on probable cause to believe the target is implicated in international terrorism or activity on behalf of a foreign power, the WSP permits the NSA to spy on Americans based on its belief the target may be linked to al Qaeda. But as to a hammer everything is a nail, to a spy agency every dissident or critic seems a probable terrorist or foreign agent.

Remember the government’s spying on the likes of John Lennon, Charlie Chaplin and Albert Einstein. Moreover, whereas FISA requires the government to destroy intercepted communications that prove innocuous, the WSP lacks any corresponding obligation enforceable by the judiciary. Finally, the NSA had been hijacked for nonforeign intelligence purposes prior to enactment of FISA as unearthed by the so-called “Church Committee” of the U.S. Senate.

The plaintiffs in ACLU included journalists, academics and lawyers who routinely communicate with persons overseas. They claimed a well-founded fear that their e-mails and phone calls abroad would be illegally intercepted by the NSA with no controls on the dissemination of the contents of their communications. Thus, they were compelled to desist to protect their communications privacy against indiscriminate government snooping — a concrete injury in the eyes of both FISA and the Fourth Amendment’s prohibition on unreasonable searches. Both honor the individual right to be left alone, the right most treasured by civilized people.

The plaintiffs were unable to claim to a certainty they had been targeted under the WSP because the NSA keeps its targets confidential under the state secrets doctrine. But based on the public record, the plaintiffs reasonably feared that their communications would be illegally intercepted, retained and disseminated by the NSA. On Dec. 16, 2005, the New York Times revealed the NSA’s spying on Americans that President Bush had hoped to keep secret from Congress and the American people forever. After the disclosure, the president declared that in the weeks following the terrorist attacks of September 11, 2001, he had instructed the NSA to intercept the “international communications of people with known links to al Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks.”

President Bush was dissembling. If the WSP targeted only persons with “known links” to terrorist organizations, the NSA could have obtained FISA warrants for its spying because of the statute’s modest “probable cause” threshold. More than 99 percent of all applications for FISA warrants are granted.

The WSP, however, authorizes electronic surveillance of any American that the president, the vice president or the NSA chooses to target — i.e., indiscriminate spying — because there are no checks by either Congress or the judiciary.

Attorney General Alberto Gonzales has conceded the WSP operates outside FISA’s measured restrictions. The Bush administration, moreover, generally equates opposition or disagreement with sympathy for the nation’s enemies worthy of suspicion or retaliation. Detractors of the Patriot Act were maligned as unpatriotic. Lawyers representing detainees at Guantanamo Bay with claims that have been sustained by the Supreme Court or lower courts were assailed as virtual terrorist champions. And the president and vice president schemed to destroy Ambassador Joseph Wilson and his wife Valery Plame through covert leaks to the press in retaliation for Mr. Wilson’s questioning the intelligence that Iraq had attempted to purchase uranium in Niger.

In sum, only an ingenue or fool would believe the WSP targets only known terrorists and confines the dissemination of intercepted communications it intercepts to national security purposes.

Judge Batchelder, nevertheless, scoffed at the plaintiffs’ apprehension that they would become spy targets: “First, there is no evidence in the record from which to presume that the information collected by the NSA via warrantless wiretapping will be used or disclosed for any purpose other than national security. Next, there is no evidence in the record from which to presume that the information collected by the NSA is not complying with, or even exceeding, FISA’s restrictions on the acquisition, retention, use, or disclosure of this information (i.e., FISA’s minimization techniques.)”

In other words, according to Judge Batchelder, President Bush may have resorted to the WSP to impose new and more exacting limits on collecting foreign intelligence because he believed FISA’s constraints were too anemic. And as to fearing the NSA’s misuse of information, she insisted the plaintiffs were out of luck because the government’s state secrets privilege blocked them from discovering evidence of misuse or its probability. The law presumes President Bush and his spies are angels. Evidence to the contrary will not be entertained unless volunteered by the White House.

King George III could not have wished for more.

Bruce Fein is a constitutional lawyer with Bruce Fein & Associates and chairman of the American Freedom Agenda. Mr. Fein is author of the forthcoming book, “Constitutional Peril: The Life and Death Struggle for the Constitution and Democracy.”

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