In December 2005, the New York Times broke the story that, for more than four years, the NSA had engaged in a widespread program of warrantless electronic surveillance of telephone calls and emails, with the approval of President Bush and in violation of the Foreign Intelligence Surveillance Act (FISA). FISA explicitly authorizes electronic surveillance for the purposes of collecting foreign intelligence only upon the order of federal judges on a special, FISA court and authorizes warrantless wiretapping for only the first fifteen days of a war. Wiretapping without specific, statutory authority is explicitly criminalized. President Bush never sought to amend the statute; he simply violated it by authorizing warrantless wiretapping of Americans without statutory authority or court approval.
CCR filed CCR v. Bush (later, CCR v. Obama) in the Southern District of New York, on behalf of itself and on behalf of CCR attorneys and legal staff representing clients who fit the criteria described by the Attorney General for targeting under the surveillance program. The case was filed against President George W. Bush, the head of the National Security Agency (NSA), and the heads of other major security agencies, and argued that the NSA surveillance program violated FISA’s clear criminal prohibitions on such surveillance, exceeded the President’s authority under Article II of the Constitution, and violated the First and Fourth Amendments.
CCR and its legal staff represent, or have represented, hundreds of men detained indefinitely without charge at Guantánamo; Maher Arar, a Canadian citizen who was accused of al Qaeda ties and then rendered from the United States to Syria to be tortured; and Muslim immigrants unreasonably and wrongfully detained in the U.S. for months without probable cause or criminal charges in the wake of 9/11. In the course of representing these clients, our lawyers have participated in and exchanged innumerable telephone calls and emails with people outside of the United States, including our clients, our clients’ families, outside attorneys, potential witnesses, and others. CCR v. Bush sought to protect our right to represent clients free from unlawful and unchecked surveillance.
More damning evidence emerged after the complaint was filed: Assistant Attorney General William Moschella acknowledged in a submission to Congress that attorneys are not categorically excluded from those who are surveillance targets under the program; the New York Times reported that “[t]he Justice Department does not deny that the government has monitored phone calls and e-mail exchanges between lawyers and their clients as part of its terrorism investigations in the United States and overseas” and that senior Department of Justice officials “knew of…a handful of terrorism cases…in which the government might have monitored lawyer-client conversations”; the judge in CCR’s case granted summary judgment in another case, Al Haramain v. Obama, based on an inadvertently-leaked document which purportedly showed that lawyers for a controversial domestic charity had been subject to NSA surveillance.
Arguing that the NSA surveillance was illegal because it lacked judicial approval or statutory authorization, CCR v. Bush originally sought an injunction that would prohibit the government from conducting warrantless surveillance of communications in the U.S. By January 2007, the administration claimed it had shut down the original program, having received approval from a FISA judge to carry out the same surveillance pursuant to a court order. Those orders were apparently overturned by other FISA judges hearing the renewal applications. Almost immediately, the administration sought new authority from Congress. That authority came, first, in the Protect America Act (PAA), which became law in August 2007, days before a scheduled oral argument in CCR v. Bush and, later, after the PAA expired, in the FISA Amendments Act, which passed in the wake of a crucial switch in favor of the Act by then-Senator Obama.
There remained one final set of claims not affected by the putative end of the program: CCR asked the court to order the government to destroy any records of surveillance of CCR attorneys and legal staff.