Of all the lawsuits seeking to halt the National Security Agency's program to eavesdrop on certain Americans' electronic communications, a new one filed last week in Oregon may provide the federal courts with the most detailed glimpse yet into the clandestine counterterrorism effort.
The biggest challenge for such cases - which have also been filed in New York, Michigan, and California - is that plaintiffs don't have access to records of highly classified government surveillance activities and therefore can't be sure they were personally subjected to covert phone- tapping or e-mail reading by the US government.
The Oregon suit may manage to leap over that imposing legal hurdle. Lawyers and their clients apparently have seen phone logs and other top-secret records inadvertently provided, and then hastily recovered, by government officials.
"In the [court] motion there is material under seal, which we will rely on in our case," says lawyer Tom Nelson in Portland, who represents an Oregon group tied to a now-defunct Islamic charity in Saudi Arabia and two Washington lawyers who allege they were wiretapped without warrant under the National Security Agency (NSA) program.
"We can't get into what's there," says Mr. Nelson. "But we have very specific information on what happened, when it happened, and what was intercepted. We obviously think it will be helpful in court in proving our contention."
Similar cases have been brought by the American Civil Liberties Union (ACLU), the Center for Constitutional Rights (CCR), and the Electronic Frontier Foundation (EFF). Their aim is to stop a controversial domestic-surveillance program that raises questions - in Congress and among the public - about how far national security efforts can impinge on individual privacy.
The EFF, a San Francisco-based nonprofit organization, has filed a class-action lawsuit against AT&T, accusing the telecommunications giant of violating the law and the privacy of its customers by helping the NSA engage in what staff attorney Kevin Bankston calls "the biggest fishing expedition ever devised." AT&T officials say they do not discuss national security issues or pending litigation. FBI and US Attorney's Office officials have declined comment as well.
Civil rights lawyers at the CCR in New York represent many Muslim foreign nationals detained after the 9/11 attacks, including some held at the US naval base at Guantánamo Bay, Cuba. CCR lawyers frequently communicate with clients and witnesses in Asia and the Middle East. They contend that NSA eavesdropping and e-mail "data-mining" violate constitutional provisions protecting free speech and prohibiting illegal search and seizure. The NSA's activities - which have been conducted by presidential order without the normally required court approval - also impinge on attorney-client protections, the CCR suit alleges. "It's absolutely clear on the face of the law that this program is illegal," says CCR attorney Shayana Kadidal.
Among the plaintiffs in the ACLU case, filed in Detroit, are journalists, scholars, and nonprofit groups such as Greenpeace and the Council on American Islamic Relations. The ACLU suit "challenges the constitutionality of a secret government program to intercept vast quantities of the international telephone and Internet communications of innocent Americans without court approval...."
More court challenges to the NSA program are expected to be filed on behalf of criminal defendants prosecuted under antiterrorism laws. Though they may have acknowledged their guilt in plotting to attack American targets such as the Brooklyn Bridge, they are now expected to challenge their convictions on the grounds that prosecution evidence (phone records and taped conversations) was illegally obtained, attorneys familiar with the cases say.
The Oregon case dates back to 1997 when a chapter of the Al Haramain Islamic Foundation, a Saudi Arabian charity, was established in the town of Ashland by Iranian immigrant Perouz Sedaghaty, a longtime arborist and peace activist known here as Pete Seda. Last year, the US government charged the group with laundering $150,000 in donations to help Islamic fighters in Chechnya, a charge Mr. Seda's many friends here (including a local rabbi) find incredible.
Americans have mixed views of the NSA's domestic snooping. Seventy-six percent agree that the government "should use wiretaps to listen to telephone calls and read e-mails between suspected terrorists in other countries and some people in the United States," according to a new poll by Quinnipiac University in Hamden, Conn. And 54 percent believe that such surveillance by the Bush administration has prevented acts of terrorism, while 33 percent do not.
But a majority (55 to 42 percent) says snooping on US citizens communicating with individuals abroad should require a court order first. That's the nub of the debate in Congress. Reflecting such mixed opinions, the Republican-led House Intelligence Committee last week widened its investigation of the NSA program.