CCR v. Bush

Synopsis

CCR v. Bush is a lawsuit 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 surveillance of people within the United States.

Status

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.

Description

CCR v. Bush is a lawsuit CCR 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. Charging that the NSA surveillance is illegal because it lacks judicial approval or statutory authorization, CCR v. Bush seeks an injunction that would prohibit the government from conducting warrantless surveillance of communications in the U.S.

As has been widely reported, for more than four years the NSA, with the approval of the President, has 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. As a result, the President violated his oath of office to take care that the laws of this nation are faithfully executed and instead secretly violated a criminal prohibition duly enacted by Congress.

The suit argues that the NSA surveillance program violates a clear criminal law, 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 plaintiff, the Center for Constitutional Rights, represents 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. CCR's legal staff – and thus our clients – are suffering from the fact that the confidentiality of our attorney-client communications is now at risk every time we pick up the phone.Since the time we filed our case, more damning evidence about the program has emerged.

On March 24, 2006 Attorney General Alberto Gonzales confirmed that no safeguards have been put in place to protect attorney-client privileged communications. CCR v. Bush also challenges the use of the so-called “state secrets privilege,” a doctrine the government invokes to block litigation on the grounds that the case involves information that cannot be disclosed, often for “national security” reasons.

The resolution of the state secrets issue has tremendous significance: if upheld, the privilege would allow the President to effectively tell courts which cases they can hear, making it practically impossible for people to challenge unlawful practices of the executive in court.

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.