Someone Had To Do It

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

They arrive on the scene, making their claims, at a time when there is a great deal of distrust among judges for the national security claims offered by administration officials. The deference initially given to the White House by genuflecting federal judges just after the terror attacks of 9/11 has given way to skepticism and in some instances downright cynicism. No more will the courts simply take at face value the "national security arguments" made by shadowy government agents — they have been burned too often since 2001 by hyperbole, exaggeration and sometimes even outright lies.

But that's about all the American Civil Liberties Union and the Center for Constitutional Rights have on their side as they begin a quixotic quest to open up and then shut down the administration's chamber of secrets. They contend that the spy program "is substantially impairing" their "ability to obtain information from sources abroad, to locate witnesses, to represent their clients, to conduct scholarship, and to engage in advocacy." Arrayed against them is a White House that has made it clear it will cry "national security" and "executive power" and "war on terror" at every step of this process. In law schools, geeky constitutional law professors conjure up fact patterns like this to stump their overwhelmed students. Only this time it's real.

The complaints are fascinating because they offer rare insight into what the domestic spy program really does and what types of people may be affected by it. In the Michigan complaint, for example, we learn, some of us for the first time, precisely how the surveillance occurs. "NSA-controlled satellite dishes," some in the States, "access communications that are transmitted via satellite," the complaint alleges. Also, according to the plaintiffs, "the NSA works with telecommunications companies to access communications that pass through switches controlled by these companies." Finally, they charge, "the NSA works with Internet providers and telecommunications companies to access communications transmitted over the Internet."

Once the NSA has access to the information, the complaint continues, "it uses artificial intelligence aids to search for keywords and analyze patterns in millions of communications at any given time." You do not need to be an expert in technology to realize just how broad that level of surveillance could be. And you do not need an MBA to acknowledge that those private companies that are cooperating with the NSA aren't going to be asking too many questions on behalf of any of the targets of the surveillance. Indeed, through these methods, the Michigan complaint alleges, "the NSA intercepts the contents of the communications of as many as a thousand people inside the United States at any one time."

That explains in part what the NSA is doing. But to whom are they doing it? White House spokesman Scott McClellan offered an inappropriately flip (and no doubt incomplete) answer Tuesday when he said: "if you're not talking to a known al Qaeda member or a member of an affiliated organization, you don't have to worry about this." However, the two complaints offer specific examples of many legitimate people, doing perfectly legitimate things, who have many legitimate reasons to worry that they are being caught in the NSA's surveillance dragnet without the requisite judicial oversight.

Take criminal defense attorneys, for example, some of whom are representing the types of people who would be logical targets of domestic surveillance. Several of these attorneys are listed as plaintiffs in the cases because, they claim, they are "suffering irreparable harm to their ability to advocate vigorously on their clients' behalf." Why? Because "the risk that their conversations are being overheard" has forced them to "initiate protective measures to reduce the potential impact of such surveillance ... including not communicating with certain individuals at all by phone or e-mail, and avoiding subjects central to the attorney-client relationship and work product in electronic communications with others."

Or take journalists and authors. The best known of the plaintiffs is Christopher Hitchens, the conservative writer who is a supporter of the administration's efforts in Iraq. He claims he "regularly exchanges e-mails and telephone calls with individuals in Iraq, Iran, Afghanistan, Pakistan, India, Indonesia, Qatar and Kuwait" involving "discussions of Islamic fundamentalism, terrorism, jihad, Osama bin Laden, al Qaeda, and Saddam Hussein." These contacts, Hitchens claims, and the subject matter of his discussions, give him a "well-founded belief that his communications are being intercepted by the NSA under the Program."

This chilling effect is no small matter. Remember, this is an administration that has implemented "special administrative measures" to monitor and record attorney-client communications with known terror suspects who already are in prison. And it is an administration that has been aggressive in its pursuit of reporter sources in a variety of domestic law enforcement cases. Journalists and authors have a right under the First Amendment to be free to pursue stories. And defense attorneys and their clients have Fourth Amendment rights to communicate without fear that the prosecutor is listening in.

Are these rights, combined with the Congressional mandate of judicial supervision of warrants under the Foreign Surveillance Intelligent Act, enough to trump the president's constitutional war powers? That's what these cases ultimately may determine. Or maybe not. The main problem with the lawsuits is that they both are based upon the assumption that the plaintiffs have in fact been injured by the National Security Agency's program. But in order to prove those claims the plaintiffs will have to get the government to somehow authorize some sort of limited review of the wiretap records as part of a pretrial discovery and that is going to engender an enormous battle.

It's reminiscent of the fight the White House waged, successfully, a few year ago when a few groups sought access to the minutes of the vice president's energy task force. In this case, as in that one, the government loses if it even has to turn over the requested documents, even if the records show that none of the named plaintiffs was ever eavesdropped upon. So the White House will categorically refuse to allow the plaintiffs to conduct any sort of meaningful discovery without a court order, possible even one from the United States Supreme Court. These are the sorts of cases, in other words, where the big fights occur at the beginning and not necessarily at the end.

By Andrew Cohen