Guild Attorneys Challenge Government Surveillance, New Wiretapping Law

A handful of cases challenging the Bush Administration's warrantless wiretapping have been consolidated under San Francisco District Judge Vaughn Walker and were argued by NLG attorneys in August.

The first, CCR v. Bush, was argued in Walker's courtroom on August 9: 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, Shane Kadidal from CCR and Prof. David Cole. Plaintiffs allege that the surveillance program violates the Foreign Intelligence Surveillance Act (FISA) and the Constitution.

This summer 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 challenged the constitutionality of this new statute at the hearing August 9th, arguing that it violates the Fourth Amendment. It was the first challenge to the new statute, coming only four days after Bush signed the law.

Another case transferred to district court in San Francisco is Al-Haramain Islamic Foundation v. Bush. Like the other cases, the government has attempted to dismiss this case. But in this case the previous judge ruled against dismissal. An interlocutory appeal of the denial was heard by a panel of the Ninth Circuit Court of Appeals in San Francisco on August 15.

NLG Attorney Steve Goldberg and others have argued in the Al-Haramain case that the domestic communications of their clients were intercepted by the National Security Agency without a warrant, and that this violated their constitutional rights. The case is widely regarded as a particularly important legal challenge to the NSA program because, unlike most similar cases, the plaintiffs here appear to be able to establish standing.

Both cases raise 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.