The New York Times reports that in Al-Haramain Islamic Foundation v. Bush, a federal judge for the Northern District of California ruled that the Foreign Intelligence Surveillance Act (FISA) preempts the state secrets privilege. Al-Haramain sued the government after receiving a document proving they were subject to warrantless surveillance. The judge "said that the wiretapping law established by Congress was the 'exclusive' means for the president to eavesdrop on Americans, and he rejected the government's claim that the president's constitutional authority as commander in chief trumped that law." But the judge refused to throw out the lawsuit, giving the charity's lawyers 30 days to restructure their claim. The Court found that Al-Haramain had not provided a sufficient showing that they were "aggrieved." The Wired.com's Threat Level Blog has a very detailed posting.

CQ ($$) reports that the Senate will take up a rewrite of the Foreign Intelligence Surveillance Act (FISA) after returning from the July 4th recess on July 8th. On June 25 the Senate voted 80-15, to limit debate on a motion to proceed to the bill (HR 6304).

Those who oppose the bill argue that the privacy of U.S. citizens would be jeopardized and the administration's warrantless surveillance program would be protected from any determination of illegality. During debate, Senator Chris Dodd (D-CT) said; "we are about to make another great error because of fear, because we fail to understand that balancing legitimate interests of our security and our rights ought not to be compromised. That is what the FISA courts were created to do - to balance rights and fears over legitimate concerns about our security being jeopardized. So I rise once again to voice my strong opposition to the misguided FISA legislation before us, as it will come in the next day or so."

When the bill is considered in July, three amendments will be considered :

• An amendment offered by Senators Dodd, Russ Feingold (D-WI) and Patrick Leahy (D-VT) would strip the bill of its immunity provision.
• An amendment offered by Senator Arlen Specter, (R-PA) would require the lawsuits' dismissal unless a federal district court determines the assistance "was provided in connection with an intelligence activity that violated the Constitution of the United States."
• Senator Jeff Bingaman (D-NM) plans to offer an amendment that would stay all the pending lawsuits until 90 days after Congress receives the inspectors general report on the president's surveillance program required by the legislation.

For a few blogs worth reading on the issue, check out Secrecy News and Wired.com's Threat Level Blog.

Contact your Senators' office and tell them to vote "no" on the FISA bill.

The American Civil Liberties Union (ACLU) and the ACLU of Texas filed a legal challenge in Dallas federal court to clear the names of two organizations, the Islamic Society of North America (ISNA) and the North American Islamic Trust (NAIT), named by the government as "unindicted co-conspirators" in its criminal case against the Holy Land Foundation (HLF). Government attorneys publicly identified them as co-conspirators before the HLF trial, even though neither organization was the subject of a criminal investigation or charged with any crimes.

The HLF case ended in a mistrial last fall and is scheduled for a retrial in September. The ACLU press release states that "the government conceded, however, that it had absolutely no evidence proving that either ISNA or NAIT had engaged in a criminal conspiracy. The lead prosecutor in the case told lawyers for the two organizations 'that ISNA and NAIT were not subjects or targets in the HLF prosecution or in any other pending investigation.' The prosecutor also acknowledged that the public labeling was simply a 'legal tactic' intended to allow the government to introduce hearsay evidence against HLF later at trial."

The court papers argue that the groups are mainstream charitable organizations, and the government violated their Fifth Amendment rights when it publicly branded them as criminals.

CQ ($$) reports that a bill to revise the Foreign Intelligence Surveillance Act (FISA) will likely be announced today, with a possible House vote tomorrow (June 20). Under the new measure, "a federal district court to decide whether to provide retroactive legal immunity to telecommunications companies being sued for their role in the Bush administration's warrantless surveillance program. Under the prospective deal, the secret court created by the original law would get to review, in advance, the process by which the administration chooses foreign surveillance targets who may be communicating with people in the United States. One source said the federal district court deciding on retroactive immunity would review whether there was 'substantial evidence' the companies had received assurances from the government that the administration's program was legal."

And Reuters; considers this as clearly shielding the phone companies from potentially billions of dollars in lawsuits. "The House would likely approve the measure overwhelmingly. Despite opposition from its top two Democrats, the Senate would then likely give it final approval, clearing the way for President George W. Bush to sign it into law."

Meanwhile, read this New York Times editorial titled "Mr. Bush v. the Bill of Rights."

In the waning months of his tenure, President Bush and his allies are once again trying to scare Congress into expanding the president's powers to spy on Americans without a court order. . . . What is unacceptable, though, is that the district court would be instructed to decide based solely on whether the Bush administration certifies that the companies were told the spying was legal. If the aim is to allow a court hearing on the president's spying, the lawsuits should be allowed to proceed — and the courts should be able to resolve them the way they resolve every other case.

The ranking member of the Senate Select Committee on Intelligence, Senator Christopher Bond (R-MO) has put out what he considers a compromise on surveillance legislation to revise the Foreign Intelligence Surveillance Act (FISA). OMB Watch signed on to a coalition letter strongly opposing this "compromise."

"The Bond proposal does incorporate a few improvements, including an audit of illegal warrantless surveillance and a provision reaffirming that FISA is the exclusive means by which foreign intelligence surveillance can lawfully be conducted in the United States. But these modest concessions do not offset the vast new unchecked surveillance powers the bill confers on the government."

In addition, Senators Russ Feingold (D-WI) and Chris Dodd (D-CT) are urging those working to finalize the FISA Amendments Act to include provisions that protect the privacy of Americans and not to grant retroactive immunity to companies that allegedly cooperated in the illegal warrantless wiretapping program. Bond's proposal would give the FISA court the authority to decide whether to grant retroactive legal immunity for telecommunications companies. Feingold and Dodd sent a letter to Democratic leaders stating, "under the Bond proposal, the result of the FISA Court's evaluation would be predetermined. Regardless of how much information it is permitted to review, what standard of review is employed, how open the proceedings are, and what role the plaintiffs' lawyers are permitted to play, the FISA Court would be required to grant immunity. To agree to such a proposal would not represent a reasonable compromise."

A federal judge has thrown out convictions of two formers leaders of a Boston-based Muslim charity that is now defunct. According to the Boston Globe Judge Dennis Saylor of the United States District Court in Boston ruled that they should not have been convicted for tax-related charges last January. The conviction against a third defendant was allowed to stand.

The case was based on charges that the defendants published a newsletter with articles supporting jihad without reporting it to the IRS. There was evidence the group, Massachusetts Care Interantional, Inc., also sent aid to widows and orphans and disaster victims around the world. A former Harvard law professor who helped challenge the convictions, Kathleen Sullivan, told the Globe, "Never before has there been a tax criminal prosecution for a charity failing to tell you that it's sending out newsletters that somebody might not like." Prosecutors are considering an appeal.

Friday, May 23, 2008

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