Warrantless Surveillance Case in San Francisco: CCR v. Bush

August 9, 2007

Before District Judge Vaughn Walker
450 Golden Gate Ave., Courtroom 6, 17th Floor
Thursday, August 9 at 2 p.m.

The Center for Constitutional Rights (CCR) and several of its attorneys filed suit against President Bush and the National Security Agency (NSA) seeking an injunction against the warrantless electronic surveillance the government has admitted conducting. The plaintiffs are represented by Michael Avery and
Ashlee Albies on behalf of the National Lawyers Guild (NLG), Shane Kadidal from CCR and Prof. David Cole. Plaintiffs allege that the surveillance program violates the Foreign Intelligence Surveillance Act (FISA) and the Constitution.

Last weekend Congress passed an amendment to FISA purporting to make warrantless electronic surveillance legal where at least one party is reasonably believed to be outside the country. Attorneys will challenge the constitutionality of this new statute on Thursday, arguing that it violates the Fourth Amendment. It will be the first challenge to the new statute, coming only four days after Bush signed the law.

Plaintiffs claim that the government's public admissions constitute a sufficient factual basis for a declaratory judgment that the surveillance is illegal and an injunction against further surveillance. The government filed a motion to dismiss, claiming that facts surrounding the program constitute state secrets that cannot be revealed, that the case cannot be fairly litigated without exposing state secrets and hence the case must be dismissed. Both motions were fully briefed and argued in September, 2006 in federal court in N.Y., but the case was subsequently transferred to the multidistrict litigation panel on the motion of the government and now will be reargued (see also the August 15 hearing information here).

The case raises the most fundamental constitutional questions regarding the powers of the president, separation of powers, the availability and scope of
judicial review, and the nature of privacy protections afforded by the Fourth Amendment. The CCR case will be argued on the 9th of August by Michael Avery and Shane Kadidal.