April 19, 2010
by Gabriel Schoenfeld
Was the Bush administration’s Terrorist Surveillance Program a violation of the 1978 Foreign Intelligence Surveillance Act (FISA), which forbids domestic wiretapping without a warrant? And was the New York Times’s decision to reveal the existence of the highly classified program, against warnings that it would gravely damage national security, an act of journalistic heroism and a powerful blow on behalf of civil liberties?
Affirmative answers to both questions have been the standard liberal line ever since the Times broke the story of the NSA wiretapping program in December 2005. With a verdict on March 31 in the al Haramain Islamic Foundation case, the Times is claiming a stamp of approval for its actions from the courts. In a thunderous editorial, the paper declared that federal judge Vaughn Walker’s decision means that the NSA program was not only founded upon “spurious, often ludicrous, claims of national security” but that it was also flatly illegal: When the Bush administration, in investigating the terrorist ties of the al Haramain foundation, “failed to get a warrant to wiretap, it broke the law.”
Yet the facts of the al Haramain litigation are not as uncomplicated as the Times would have it. They are a reminder both of the terrorist danger we face and our vulnerabilities as an open society trying to counter it. The episode is a classic example of lawfare, with a terrorist-supporting outfit turning the rule of law and due process against us.
After September 11, the al Haramain Islamic Foundation, a “charity” based in Saudi Arabia with branches in Afghanistan, Somalia, Pakistan, Nigeria, and a number of other equally disagreeable locales, was banned worldwide under the strictures of a U.N. Security Council resolution aimed at cutting off support for “al Qaeda, Osama bin Laden and/or the Taliban wherever located.”
The Department of the Treasury deemed the U.S. branch a Specially Designated Global Terrorist Organization. Leaders of the foundation were placed on U.N. embargo lists. Whatever one makes of the case that came before Judge Walker, it is hard to see the al Haramain Islamic Foundation as anything other than a bad actor, a financial conduit for the worst of the worst.
But in our gloriously free country, the al Haramain Islamic Foundation enjoys rights, including the right to challenge its designation as a terrorist organization. It sued, and in 2004 in discovery proceedings, the Treasury Department mistakenly turned over a highly classified document making the foundation aware that it had been the object of government surveillance and evidently suggesting (the contents of the so-called “Sealed Document” remain sealed) that this may have been done without a warrant.
Attempting to correct Treasury’s blunder, the Bush administration sought to have the case tossed out of court by invoking the state-secrets privilege, a rule that allows the government to avoid having to defend a case in which sensitive national-security information is placed at risk. Invocation of the state-secrets privilege can be an ugly legal move; when a case is terminated summarily on the say-so of the executive branch, justice can be capriciously sidestepped and denied. But in this instance, an appeals court panel reviewed the Sealed Document and found that “the basis for the privilege is exceptionally well documented” and that disclosure of “information concerning the Sealed Document and the means, sources and methods of intelligence gathering in the context of this case would undermine the government’s capabilities and compromise national security.” With the Sealed Document deemed inadmissible, the al Haramain foundation’s challenge of its designation as a terrorist organization went nowhere.
But the appearance in December 2005 of the Times story about the NSA wiretapping paved a new avenue for its attorneys. Public sources were now, for the first time, becoming available that could help construct a nonclassified evidentiary basis that the U.S. government had engaged in surveillance outside of the FISA framework, opening the possibility that the government could be sued. Then in 2007 an FBI official confirmed (in a speech to the American Bankers Association that was posted on the FBI’s website) that al Haramain had been surveilled (without specifying exactly by what means). From this lapse arose the claim against the U.S. government, alleging that the surveillance was warrantless and therefore trampled on an array of constitutional rights.
In ruling against the government and affirming this claim, Judge Walker relied on a straightforward logic: The plaintiffs had demonstrated that they had been wiretapped in a manner that required a warrant. The defendants, i.e., the government officials who had performed the surveillance, had declined to confirm or deny in court that they had obtained such a warrant and simply asked for the case to be dismissed. But the state-secrets privilege, ruled Judge Walker, could not be invoked in a way that made FISA “optional,” employed as a means to evade “a statute enacted specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.” It is this ruling that the New York Times is celebrating as a vindication of its disclosures: The NSA was operating lawlessly, found the court, and the Times, fulfilling a classic duty of a free press, brought the lawlessness to light.
But matters are hardly so simple. One point is that Judge Walker’s refusal to allow the invocation of the state-secrets privilege is a wholly separate issue from whether FISA was violated. Pressing for dismissal under the state-secrets privilege, the Obama Justice Department, like its predecessor under George W. Bush, never felt it necessary to mount an argument touching upon the legality of the surveillance itself. Lacking any briefs from the government on the underlying issue, and relying only on the representations of the al Haramain attorneys, Judge Walker’s ruling left the real questions swirling around NSA warrantless tapping and FISA unresolved.
One such question, which will be certain to figure prominently if the Obama administration appeals Walker’s ruling, is the constitutional status of FISA itself—a matter that would likely require a Supreme Court decision to resolve. Although reasonable students of the issue come to different conclusions, presidents of both parties have consistently asserted the constitutionally derived prerogative for conducting foreign intelligence surveillance without a warrant. Indeed, at the time the FISA legislation was under consideration by Congress, President Carter’s attorney general, Griffin Bell, put on record the executive branch’s caveat that while the bill recognized “no inherent power of the president to conduct electronic surveillance,” this lacuna “does not take away the power of the president under the Constitution” to engage in precisely such activity.
President Clinton did something parallel. His deputy attorney general, Jamie Gorelick, explained to the House intelligence committee that “the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes.” In the Aldrich Ames spy case, they conducted such warrantless searches. When it comes to electronic surveillance, the same principle obtains.
For its part, the Bush Justice Department, after the Times broke the NSA story, issued a white paper noting that in matters of national security, the FISA statute was trumped by the “president’s well-recognized inherent constitutional authority as commander in chief and sole organ for the nation in foreign affairs.” It was this authority that extended to the conduct of “warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States.”
And finally, there is Barack Obama. As he campaigned for the presidency in 2008, he pledged never to engage in “wiretaps without warrants.” To drive the point home, Obama promised to filibuster any bill that gave telecommunications companies retroactive immunity for cooperating with the NSA’s counterterrorism program. But that same year, Congress—by then under Democratic control and wrestling with the exigencies of national defense—voted to authorize such wiretapping. Senator Obama did not filibuster the bill as he had promised. Indeed, in one of the more notable flip-flops of the general-election campaign, he voted for it, notwithstanding the retroactive immunity it conferred on the telecoms.
Thanks to that legislation, the Obama administration continues to engage in warrantless wiretapping on American soil, confining itself, precisely as the Bush administration did, to those cases in which one of the parties in a conversation or email is an al Qaeda suspect communicating across our borders. The New York Times, for its part, continues to denounce such wiretapping in extravagant language even though it has the blessing of President Obama and Congress.
But in celebrating Judge Walker’s opinion, the Times is on treacherous ground: To justify its own questionable conduct, it is picking and choosing federal district court judgments like so many cherries. The paper scrupulously avoids noting, for instance, a 2006 ruling by federal district court judge T.S. Ellis III, who sentenced a Pentagon official named Lawrence Franklin to a long prison term (subsequently reduced to parole and ten months of community confinement) for leaking secrets of a kind far less sensitive than what the New York Times broadcast to al Qaeda and the entire world.
In sentencing Franklin to prison, Judge Ellis was explicit about the reach of the laws protecting secrets, leaving no doubt that reporters and editors fall within their ambit. “Where you ran afoul,” he said to Franklin from the bench,
is arrogating to yourself the decision whether to comply with the law. .??.??. That’s not open to Americans. .??.??. All persons who have authorized possession of classified information, and persons who have unauthorized possession, who come into possession in an unauthorized way of classified information, must abide by the law. .??.??. So that applies to academics, lawyers, journalists, professors, whatever. They are not privileged to disobey the laws, because we are a country that respects the rule of law. [emphasis added]
We are indeed a country that respects the rule of law. We go to extraordinary lengths to protect the rights of even those, like the al Haramain Islamic Foundation, who would do us harm. The irony is that in this instance the case can be made that it was not the Bush administration but the New York Times that, in publishing some of our country’s most precious secrets, became the party that trampled on the rule of law. This, more than anything else, may explain the remarkable fervor with which our country’s leading newspaper has sought to vindicate the rights of the Specially Designated Global Terrorist Organization known as the al Haramain Islamic Foundation.
Gabriel Schoenfeld is a Senior Fellow at Hudson Institute.
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