Oregon Suit Tests Bush Wiretaps
By Ashbel S. Green
The Oregonian

Monday 27 March 2006

Security - An Ashland charity's case, called a strong challenge, seeks to have the secret spying declared illegal.

The document sits in a specially designed room in Seattle built to safeguard top-secret information relating to "intelligence sources, methods or analytical processes."

It is the key evidence in a Portland lawsuit that many legal experts say presents the most potent challenge to the Bush administration's recently revealed secret wiretapping program.

No one involved in the case will say so publicly, but the document appears to be a record of warrantless National Security Agency eavesdropping on phone calls between two U.S. lawyers and an official of an Ashland-based Islamic charity.

The suit seeks damages and a declaration that the wiretapping program is illegal. Half a dozen other lawsuits around the nation challenge the "Terrorist Surveillance Program," but only the Oregon case claims to have specific evidence of it.

"I think it is the most important of all those lawsuits. This goes to the head of the line," said Christopher H. Pyle, a constitutional law expert and a professor at Mt. Holyoke College in Massachusetts. "These plaintiffs can prove that they were spied on."

The suit could redefine how much authority a president has to defend against threats to national security.

President Bush asserts that his constitutional powers to wage war carry an intrinsic authority to pursue intelligence operations, including wiretaps without warrants, of enemies such as al-Qaida. The plaintiffs, echoing the claims of Democrats and some Republicans, assert that Congress limited those powers in 1978 when it passed the Foreign Intelligence Surveillance Act, or FISA.

The law is seemingly straightforward: Intelligence agencies can plant bugs, eavesdrop on conversations or otherwise spy on U.S. citizens, provided they obtained approval from a secret court.

Bush contends that Congress gave him the power to carry out such operations without a FISA warrant when it broadly authorized him to respond to the Sept. 11, 2001, attacks.

But that argument could fail: Some key congressional players say they never intended to give Bush such powers.

If it does, the Bush administration will find itself arguing in a Portland federal court that FISA infringes on the president's authority to defend the nation from foreign threats, according to Victoria Toensing, a former senior Justice Department official who was involved with drafting the law.

"If FISA interferes with that inherent constitutional authority," Toensing said, "then it's unconstitutional."

Presidential Authority

That view is by no means universally held. Bruce Fein, a constitutional lawyer, has testified before Congress that such arguments about the "inherent authority" of the president could be used to justify any infringement of constitutional rights.

By this logic, he said, a president could round up Americans and imprison them, saying: "These are people who are likely to be spies and saboteurs and helpers of al-Qaida. I don't need a warrant. And since Roosevelt did it in World War II (by interning many Japanese and Japanese Americans), I can do it now."

Fein contends the framers of the Constitution never intended to give a president such authority.

If it is proved that the government listened to conversations between lawyers and their clients, the Al-Haramain Islamic Foundation in Ashland, the case will stand in contrast to another nationally publicized terrorism investigation: the arrest of Brandon Mayfield.

FBI examiners mistakenly matched the Portland lawyer's fingerprint to one found on a bag of detonators after the March 11, 2004, terrorist bombings in Madrid, Spain. FBI agents began an intense surveillance of Mayfield. They applied for, and received, FISA authorization after they began eavesdropping.

Mayfield Case Cited

Critics of the president's warrantless wiretapping say the Mayfield case shows that FISA's emergency procedures, which allow government agents to seek a warrant after they begin spying on a U.S. citizen, are sufficient to deal with fast-moving investigations.

"In the Brandon Mayfield case, they got a FISA warrant, which is what they should have done," said Thomas H. Nelson, one of the attorneys who filed the Portland suit. "The Mayfield case, for all its shortcomings and downfalls, reflected how the structure should work."

Nelson represents the Al-Haramain Islamic Foundation and Wendell Belew and Asim Ghafoor, two U.S. lawyers who represented the Oregon nonprofit.

The suit contends that the National Security Agency violated FISA because it conducted electronic surveillance on his clients without a warrant.

Nelson, who represented Mayfield when he was first arrested in May 2004, said warrants are vital because they allow judicial oversight.

"The judiciary has a role to play in our government, and that role is to protect citizens from the power of the government," he said.

Mayfield is suing the federal government over his arrest.

Senate Testimony

Testifying before the Senate last month, Attorney General Alberto Gonzales said FISA had an exception that gave Bush authority for a program that monitors international communications when one of the parties may be associated with al-Qaida. Gonzales also said a president has broad powers in times of war.

"These inherent authorities vested in the president by the Constitution include the power to spy on enemies like al-Qaida without prior approval from other branches of government," Gonzales said.

He said that pre?idents Washington, Lincoln, Wilson and Franklin Roosevelt authorized warrantless wiretapping programs.

"Presidents throughout our history have authorized the warrantless surveillance of the enemy during wartime, and they have done so in ways far more sweeping than the narrowly targeted terrorist surveillance program authorized by President Bush," Gonzales said.

Although Congress seems unlikely to try to restrict the program, various lawsuits filed by civil liberties groups and individuals aim to do just that.

The suits take a variety of approaches, but other than the Oregon case, they have a potential problem: The plaintiffs don't really know whether they've been spied on.

"All these other cases are just speculative," Toensing said.

Shayana Kadidal is a staff attorney for the New York-based Center for Constitutional Rights, which filed a lawsuit against the Bush program this year.

Kadidal acknowledges that without proof of spying, lawsuits face a threat of dismissal. But he says judges have shown a willingness to look into the issue.

Document at Issue

The Oregon case faces plenty of hurdles.

The Oregonian has filed a motion seeking to make the document public, but the federal government could seek to dismiss the suit on the grounds that it is based on classified materials that the plaintiffs had no right to see.

Neither Nelson nor the other lawyers involved in the case would comment directly on the Seattle document. Its existence, however, is more than a guess.

In 2004, a Washington lawyer representing Al-Haramain received a document stamped "top secret" and dated May 24, 2004, from the Treasury Department.

Belew, the lawyer, shared it with Washington Post reporter David Ottaway.

In November 2004, the FBI asked Belew and the Post to return the document, which Ottaway has said appears to be a summary of "one or more conversations intercepted by the government," the Post has reported.

The FBI warned the Post that the document related to national security and that disclosure of its contents could prompt prosecution. The newspaper returned the document and did not write about it until the lawsuit was filed in Portland.

Nelson said he was pleased that the document was now under the authority of a court. To that extent, there is some judicial oversight of the program, he said.

"It means we've got somebody from the third branch of government who knows what's in there," he said.