ACLU Sues NSA Over Wiretapping

The ACLU has filed an unprecedented lawsuit against the National Security Agency over what they say is illegal wiretapping of American citizens in contact with people in other nations. The lawsuit is filed on behalf of numerous journalists, scholars and organizations whose members have reason to believe that their phone calls and emails may have been among those listened in on and read without a warrant from the FISA court by the NSA, including James Bamford, a journalist who was threatened with prosecution in the 1970s while researching NSA wiretapping, Tara McKelvey, the Council on American-Islamic Relations, Greenpeace, and perhaps most interestingly, Christopher Hitchens.

Saying that the Bush administration's illegal spying on Americans must end, the American Civil Liberties Union today filed a first-of-its-kind lawsuit against the National Security Agency seeking to stop a secret electronic surveillance program that has been in place since shortly after September 11, 2001.

"President Bush may believe he can authorize spying on Americans without judicial or Congressional approval, but this program is illegal and we intend to put a stop to it," said ACLU Executive Director Anthony D. Romero. "The current surveillance of Americans is a chilling assertion of presidential power that has not been seen since the days of Richard Nixon."

The lawsuit was filed on behalf of a group of prominent journalists, scholars, attorneys, and national nonprofit organizations (including the ACLU) who frequently communicate by phone and e-mail with people in the Middle East. Because of the nature of their calls and e-mails, they believe their communications are being intercepted by the NSA under the spying program. The program is disrupting their ability to talk with sources, locate witnesses, conduct scholarship, and engage in advocacy.

I have little doubt that they are correct that their calls and emails have likely been surveilled. The wiretapping being done is not of specific people, it appears, but of essentially any communication that takes place with people in certain parts of the world. The NSA is tapping into the main backbone of that communication and collecting all of the data, dumping them into a big computer and seeking out particular phrases or patterns. That's likely why they won't seek FISA court approval, because you can't prove probable cause when likely 99% of what is being surveilled does not involve anything worrisome.

But if their computer analysis picks out key phrases, any discussion between, say, a journalist and a source in Afghanistan is likely to involve discussions of bombings, threats to the government there, terrorism, Islamic extremism and so forth. Those are exactly the things likely to be flagged for surveillance and end up getting someone on a list. And as the man who blew the whistle on the NSA said in an interview the other day, the biggest problem with such data analysis is false positives.

Most interesting, to me, is the involvement of Christopher Hitchens. Hitchens has long been one of my favorite writers, but in the last two years his outspoken support for the invasion of Iraq and for a serious war on Islamic extremism has led to quite a rift between him and the left. Much of the criticism of him in this regard is, in my view, unwarranted and it is refreshing to see that he is willing to hold fast to principles of limited government.

It's also important because it shows that one can support an aggressive posture toward the threat that is coming from militant Islam (and yes, I do think the threat may be stated that broadly and that is why I am adamant that we must build up moderate Islamic forces in any way possible) and still take a principled stand against unnecessary intrusions on our freedoms. Hitchens' statement is worth reproducing in full:

Although I am named in this suit in my own behalf, I am motivated to join it by concerns well beyond my own. I have been frankly appalled by the discrepant and contradictory positions taken by the Administration in this matter. First, the entire existence of the NSA's monitoring was a secret, and its very disclosure denounced as a threat to national security.

Then it was argued that Congress had already implicitly granted the power to conduct warrantless surveillance on the territory of the United States, which seemed to make the reason for the original secrecy more rather than less mysterious. (I think we may take it for granted that our deadly enemies understand that their communications may be intercepted.)

This makes it critically important that we establish an understood line, and test the cases in which it may or may not be crossed.

Let me give a very direct instance of what I mean. We have recently learned that the NSA used law enforcement agencies to track members of a pacifist organisation in Baltimore. This is, first of all, an appalling abuse of state power and an unjustified invasion of privacy, uncovered by any definition of "national security" however expansive. It is, no less importantly, a stupid diversion of scarce resources from the real target. It is a certainty that if all the facts were known we would become aware of many more such cases of misconduct and waste.

We are, in essence, being asked to trust the state to know best. What reason do we have for such confidence? The agencies entrusted with our protection have repeatedly been shown, before and after the fall of 2001, to be conspicuous for their incompetence and venality. No serious reform of these institutions has been undertaken or even proposed: Mr George Tenet (whose underlings have generated leaks designed to sabotage the Administration's own policy of regime-change in Iraq, and whose immense and unconstitutionally secret budget could not finance the infiltration of a group which John Walker Lindh could join with ease) was awarded a Presidential Medal of Freedom.

I believe the President when he says that this will be a very long war, and insofar as a mere civilian may say so, I consider myself enlisted in it. But this consideration in itself makes it imperative that we not take panic or emergency measures in the short term, and then permit them to become institutionalised. I need hardly add that wire-tapping is only one of the many areas in which this holds true.

The better the ostensible justification for an infringement upon domestic liberty, the more suspicious one ought to be of it. We are hardly likely to be told that the government would feel less encumbered if it could dispense with the Bill of Rights. But a power or a right, once relinquished to one administration for one reason, will unfailingly be exploited by successor administrations, for quite other reasons. It is therefore of the first importance that we demarcate, clearly and immediately, the areas in which our government may or may not treat us as potential enemies.

Hard to disagree with much of that. One might add to the reasons why we cannot trust the government to use those surveillance powers only against our enemies by citing the Pentagon's spying on gay rights groups and the entire sordid history of Cointelpro.