Monday, February 10, 2014

CCR v. Obama (formerly CCR v. Bush)

CCR v. Obama (formerly CCR v. Bush)

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Synopsis

CCR v. Obama is a lawsuit originally filed by the Center for Constitutional Rights (CCR) against President George W. Bush, the head of the National Security Agency (NSA), and the heads of the other major security agencies, challenging the NSA's warrantless surveillance of people within the United States. Originally CCR sought an injunction ordering the government to end the program. When, in response, the government claimed it had shut down the program in January 2007, CCR sought to challenge the new statute under which President Bush sought to carry out similar programs of surveillance without individualized suspicion under the Protect America Act. The current claims in the case center on our request that the court order the government to destroy any records of surveillance that it still retains from the illegal NSA Program.

Status

After cross-motions for summary judgment were filed by each party, the district court dismissed plaintiffs' claims on January 31, 2011. Plaintiffs filed their Notice of Appeal in April and briefing in the Ninth Circuit occured between August through October 2011.
The Ninth Circuit had originally scheduled oral argument in this case for June 1, 2012. However, on May 21, 2012, the Supreme Court agreed to hear a similar case from the Second Circuit brought by the ACLU, challenging the FISA Amendments Act passed in 2008. The Ninth Circuit panel subsequently postponed argument in this case until the resolution by the Supreme Court of the ACLU case, which was decided (in favor of the government, by a 5-4 vote) on February 26, 2013. The Ninth Circuit then requested supplemental briefs be filed by April 26, 2013. It had previously indicated that it would reschedule the oral argument. However, on June 3, 2013 the panel indicated that it would submit the case for resolution without oral argument. On June 10, 2013 the panel affirmed the lower court's dismissal in a short opinion. On July 25, 2013, CCR filed a petition for rehearing either by the panel or by the full Court of Appeals for the Ninth Circuit sitting en banc. On October 3, 2013, the Ninth Circuit denied rehearing by the panel and rehearing en banc. CCR's cert petition to the Supreme Court was filed on January 2, 2014. On Feb. 6, 2014, the government waived its right to file an opposition.

Description

CCR v. Obama is a lawsuit CCR originally filed against President George W. Bush, the head of the National Security Agency (NSA), and the heads of the other major security agencies, challenging the NSA's surveillance of people within the United States in January 2006. Charging that the NSA surveillance is illegal because it lacks judicial approval or statutory authorization, CCR v. Bush originally sought an injunction that would prohibit the government from conducting warrantless surveillance of communications in the U.S.
In December 2005 the New York Times broke the story that for more than four years the NSA, with the approval of the President, had engaged in a widespread program of warrantless electronic surveillance of telephone calls and emails in violation of the Foreign Intelligence Surveillance Act (FISA). FISA explicitly authorizes electronic surveillance for the purposes of collecting foreign intelligence only upon orders issued by federal judges on a special court. It expressly authorizes warrantless wiretapping only for the first fifteen days of a war and makes it a crime to engage in wiretapping without specific statutory authority. Rather than seeking to amend this statute, the President simply violated it by authorizing warrantless wiretapping of Americans without statutory authority or court approval.
The suit argues that the NSA surveillance program violates FISA's clear criminal prohibitions on such surveillance, exceeds the President's authority under Article II of the Constitution, and violates the First and Fourth Amendments. CCR filed the suit in the U.S. District Court for the Southern District of New York on its own behalf and on behalf of CCR attorneys and legal staff representing clients who fit the criteria described by the Attorney General for targeting under the NSA Surveillance Program.
The plaintiffs, CCR and its legal staff, represent hundreds of men detained indefinitely without charge as "enemy combatants" at Guantánamo Bay; Maher Arar, a Canadian citizen who was accused of al Qaeda ties and then rendered from the United States to Syria for the purpose of being tortured; and Muslim immigrants unreasonably and wrongfully detained in the U.S. for months without probable cause or criminal charges in the wake of 9/11. CCR has been one of the most active opponents of the illegal detention, torture, and intelligence-gathering practices this administration instituted post-9/11. In the course of representing these clients, our lawyers have engaged in innumerable telephone calls and e-mails with people outside of the United States, including our clients, our clients' families, outside attorneys, potential witnesses, and others. This lawsuit aims to protect our right to represent clients free of unlawful and unchecked surveillance.

Since the filing of the original complaint, more damning evidence about the program has emerged: Assistant Attorney General WIlliam Moschella acknowledged in a submission to Congress that attorneys are not categorically excluded from the definition of surveillance targets under the program; the Times reported that “[t]he Justice Department does not deny that the government has monitored phone calls and e-mail exchanges between lawyers and their clients as part of its terrorism investigations in the United States and overseas" and that senior Department of Justice officials “knew of ... a handful of terrorism cases ... in which the government might have monitored lawyer-client conversations"; and the same judge our case was before granted summary judgment in a case (Al Haramain v. Obama) based on an inadvertently-leaked document which supposedly showed lawyers for a controversial domestic charity had been subjected to NSA surveillance.
By January 2007, just before oral argument on appeal in the parallel case brought by the ACLU, the adminsitration claimed to have shut down the original program, having received approval from a FISA judge to carry out the same surveillance pursuant to court order. Those orders were apparently overturned by other FISA judges hearing the renewal applications, and almost immediately the adminsitration sought new authority from a submissive Congress. That authority came first in the form of the Protect America Act, which passed into law in August 2007, days before a scheduled oral argument in CCR v. Bush. CCR sought permission to amend its complaint to add new claims based on the unconstitionality of the new statute, but it expired before Judge Walker ruled on our motion. (Ultimately Congress replaced it with a broad set of amendments to FISA, the FISA Amendments Act, in the summer of 2008 after a crucial switch in favor of the act by then-Senator Obama. Notwithstanding its new, broader statutory powers, the new Obama administration never formally renounced the power to carry out the warrantless surveillance we originally challenged -- an issue still in dispute in the case.)
There remained one final set of claims not affected by the putative end of the Program: CCR asked the court to order the government to destroy any records of surveillance of the plaintiffs—CCR attorneys and legal staff who feared that their phone calls and emails were subject to surveillance under the program.
The government argued that CCR did not have standing to sue because the Center lacked evidence that its staff and attorneys had actually been surveilled (and could not obtain or use such evidence in the court proceedings because such evidence would be a “state secret”). In a ruling issued on Jan. 31, 2011, the distict court agreed, holding that, even though “plaintiffs appear to have established that their litigation activities have become more costly due to their concern about [possible surveillance under the NSA Program],” we could not sue without proof that we had actually been eavesdropped upon.
The government's claim that a plaintiff must have evidence of actual surveillance in order to maintain standing is ultimately based on the premise that the state secrets privilege must bar discovery of any such information. Yet the most basic relief CCR requested was that the court simply order the Obama administration to destroy any records that were fruits of the illegal surveillance of our legal staff, and then certify to the court that it had complied. No secrets would be divulged by that process (essentially a conversation between the government and the court) at all.
With this ruling, all but two of the legal challenges to the original NSA Program will have been dismissed without the Obama administration ever having taken a position on whether or not the original NSA Program was legal.

Timeline

On January 17, 2006, the Center for Constitutional Rights (CCR) filed the lawsuit against President George W. Bush, the head of the National Security Agency (NSA), and the heads of the other major security agencies, challenging the NSA's surveillance of persons within the United States.
On March 9, 2006, CCR filed for summary judgment, arguing that the administration has already admitted enough about the program that it can be proven to be illegal without seeking more facts or a full trial.
On May 26, 2006, the government filed its response to the complaint and the motion for summary judgment. The government's response challenged CCR's standing to bring suit, but, more significantly, claimed that the entire case must be dismissed because if it were allowed to go forward, it would threaten the secrecy of confidential information essential to national security.
On June 30, 2006, CCR filed an opposition brief, including several affirmations detailing the effect of the surveillance on our ability to represent our clients.
On July 6, 2006, Judge Gerard Lynch of the Southern District denied the government's request to stay consideration of the merits of the case (that is, consideration of CCR’s summary judgment motion) until the state secrets privilege issues is resolved.
On September 5, 2006, oral argument was held on both motions. The main topics of discussion over the nearly three-hour-long argument were: standing, the limits of congressional and presidential power to regulate surveillance, and the extent of the executive branch's factual admissions concerning the NSA Program.
On December 15, 2006, the Judicial Panel on Multidistrict Litigation ordered CCR v. Bush transferred to the same court in San Francisco where the Electronic Frontier Foundation's case, Hepting v. AT&T, and several dozen other cases against private telecommunications companies are being heard. The case was transferred to the court of Judge Vaughn Walker.
On January 17, 2007, Attorney General Alberto Gonzales announced that the President had decided to let the existing warrantless NSA Program expire (rather than continuing to reauthorize it) because the administration had convinced a single judge of the FISA court to issue a number of orders that, according to Gonzales, would allow the same sort of surveillance to occur pursuant to the court's orders.
On August 1, 2007, it was disclosed that a FISA court judge had refused the government’s request for a “basket warrant,” which would allow surveillance of multiple people, rather than warrants issued for specific individuals.
On August 5, 2007, President Bush signed into law the ironically named Protect America Act of 2007, passed by both the House and the Senate, which broadly expands the federal government’s power to conduct surveillance on Americans without a court warrant. The bill went beyond earlier reports that the new law would merely allow the government to listen in to communications between two overseas parties that just happen to route through a switching circuit located in the U.S. Under the new statute, the Attorney General and Director of National Intelligence may approve listening in on the conversations of people in the U.S., including citizens, so long as the target of the surveillance is “reasonably believed” to be abroad, with no prior review by the courts.
On August 9, 2007, CCR attorneys appeared before Judge Walker to argue that the NSA’s program of warrantless surveillance is unconstitutional and should be struck down.
On August 10, 2007, plaintiffs moved for leave to file a supplemental complaint adding claims based on the Protect America Act of 2007. (On January 28, 2009, the court dismissed the motion of the grounds that the PAA had expired in February 2008 and not been renewed.)
On July 10, 2008, the FISA Amendments Act was signed into law.
A status report was filed on March 19, 2010, pursuant to which cross-motions for summary judgment were filed by both parties between May and October 2010. No oral argument on the renewed motions was held.
On January 31, 2011, Judge Walker dismissed all plainitffs' claims. CCR filed an appeal.
In the fall of 2011, the parties submitted briefs to the Court of Appeals for the Ninth Circuit.
On May 22, 2012, the Ninth Circuit panel (Judges Pregerson, McKeown, and Hawkins) suspended oral argument in the wake of the Supreme Court's grant of certiorari in Clapper v. Amnesty International USA, the ACLU's challenge to Congress' 2008 amendments to FISA.
On February 23, 2013, the Supreme Court by a 5-to-4 margin decided Clapper against the ACLU plaintiffs.
On April 26, 2013, both parties submitted supplemental briefs to the Ninth Circuit.
On June 10, 2013, the Court of Appeals for the Ninth Circuit affirmed dismissal of plaintiffs' claims, holding that little distinguished the case from Clapper v. Amnesty Int'l., in which the Supreme Court rejected plaintiffs claims to standing.
On July 25, 2013, CCR filed a petition for panel rehearing and rehearing en banc with the Ninth Circuit.
On October 3, 2013, the Ninth Circuit rejected CCR's en banc petition.
On January 2, 2014, CCR Filed a Petition for a Writ of Certiorari to U.S. Supreme Court.

Attached Files

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