US judge dismisses lawsuit against Bush wiretap program

The suit had asked the courts to declare the Terrorist Surveillance Program illegal and unconstitutional. But a judge said the group challenging the wiretap program lacked legal standing.

A federal judge in California has dismissed a long-running lawsuit seeking to hold the government accountable for secret, warrantless electronic surveillance conducted in the US for four years after the 9/11 attacks.

US District Judge Vaughn Walker in San Francisco dismissed the lawsuit on Monday, ruling that the Center for Constitutional Rights (CCR) and members of its staff lacked the necessary legal standing to bring such a suit.

The lawsuit had asked the courts to declare the once-supersecret Terrorist Surveillance Program (TSP) to be illegal and unconstitutional. But Judge Walker said the group had failed to offer proof that it had been targeted by the wiretap program.

“Plaintiffs did not produce ... any evidence that they were actually surveilled under the TSP,” Walker wrote in a 22-page decision.

“Only by presenting evidence of actual surveillance can a plaintiff establish the ‘aggrieved person’ status necessary to proceed with a ... claim,” he said. “Because [CCR and its staff] have presented no evidence of such surveillance, they have failed to establish standing.”

Under the program, Bush administration officials bypassed the Foreign Intelligence Surveillance Act (FISA), in which Congress required the executive branch to obtain a court-authorized warrant from a special high-security court before engaging in surveillance that might include persons in the United States.

President Bush authorized the secret surveillance program despite the legal requirements established under FISA.

The lawsuit sought a court ruling declaring that the terror surveillance effort violated FISA. It also sought a decision that Mr. Bush’s actions amounted to an unconstitutional usurpation of legislative power by the White House.

In addition, CCR alleged that the secret surveillance program violated the First Amendment rights of the group’s lawyers to consult with their clients without the threat of government eavesdropping on attorney-client conversations. They also argued that the program violated the Fourth Amendment’s prohibition on unreasonable searches.

Lawyers for CCR argued that given the announced goals of the surveillance program, the group and its lawyers were highly likely to have been targeted and monitored by the government.

CCR has played a leading role in providing lawyers for national-security detainees and terror suspects – including prisoners at Guantánamo Bay. Government surveillance of telephone, e-mail, fax, and other contacts between CCR lawyers and their clients would constitute a breach of attorney-client privilege.

The lawyers argued in their suit that the existence of the surveillance program exerted a “chilling effect” on them and their clients, raising fears that the government might be recording their conversations and legal strategy.

Walker said CCR’s suit was based on mere “possibilities” and “risks.” The fear that they might have been unlawfully surveilled was not enough to sustain the lawsuit, he said.

“Plaintiffs have not provided any precedent for the notion that the First Amendment protects against a ‘risk ... that the government may have access to aspects of [a plaintiff’s] litigation strategy’ where there is no proof that any surveillance in fact occurred,” Walker wrote.

As a fallback, CCR had urged the judge to order the government to destroy any surveillance records related to CCR and its clients.

Government lawyers argued that CCR had no standing to sue since it couldn’t prove it had been a target of actual surveillance. The government also argued that it could not be forced by a judge to disclose surveillance records as part of discovery in a lawsuit, because disclosure of such records would violate the state secrets privilege.

“The Obama administration has never taken a position – in this or any other related cases – on whether the Bush administration’s NSA surveillance program was legal,” CCR attorney Shayana Kadidal said in a statement. “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,” he said.

“It is astonishing that President Obama’s administration continues to fight to hold on to the fruits of a patently illegal surveillance program,” he said, “even where the surveillance was directed at attorneys engaged in suing the government.”