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UNITED
STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AMERICAN
CIVIL LIBERTIES UNION;
AMERICAN CIVIL LIBERTIES UNION FOUNDATION;
AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN;
COUNCIL ON AMERICAN-ISLAMIC RELATIONS;
COUNCIL ON AMERICAN-ISLAMIC RELATIONS MICHIGAN;
GREENPEACE, INC.;
NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS;
JAMES BAMFORD;
LARRY DIAMOND;
CHRISTOPHER HITCHENS;
TARA MCKELVEY;
and BARNETT R. RUBIN,
Plaintiffs,
v.
NATIONAL SECURITY AGENCY / CENTRAL SECURITY SERVICE;
and LIEUTENANT GENERAL KEITH B. ALEXANDER,
in his official capacity as Director of the
National Security Agency
and Chief of the Central Security Service,
Defendants.
ANN BEESON
Attorney
of Record
JAMEEL JAFFER
MELISSA GOODMAN (admission pending)
CATHERINE CRUMP (admission pending)
National Legal
Department
American Civil
Liberties Union Foundation
125 Broad Street, 18th
Floor
New York, NY 10004-2400
(212) 549-2500
MICHAEL J. STEINBERG
KARY L. MOSS
American Civil
Liberties Union Fund of Michigan
60 West Hancock Street
Detroit, MI 48201-1343
(313) 578-6814
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COMPLAINT FOR
DECLARATORY
AND
INJUNCTIVE
RELIEF
Case No.
Hon.
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PRELIMINARY STATEMENT
1. This lawsuit
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 (hereinafter “the Program”). The National Security Agency /
Central Security Service (“NSA”) launched the Program in 2001 and the President of
the United States ratified it in 2002.
2.
Plaintiffs are a group of prominent
journalists, scholars,
attorneys, and national
nonprofit organizations who frequently communicate by telephone and
email with people outside the
United States, including in the Middle East and Asia. Because of the nature of their calls and emails, and
the identities and locations of those with whom they communicate, plaintiffs have a
well-founded belief that their communications are being intercepted under the Program. The
Program is disrupting the ability of the plaintiffs to talk with sources, locate
witnesses, conduct scholarship, and engage in advocacy.
3.
By seriously compromising the free speech
and privacy rights of the
plaintiffs and others, the Program
violates the First and Fourth Amendments of the United States Constitution. It also
violates constitutional separation of powers principles, because it was authorized by President
George W. Bush in excess of his Executive authority and contrary to limits imposed
by Congress. In response to widespread domestic surveillance abuses committed by
the Executive Branch and exposed in the 1960s and 1970s, Congress enacted
legislation that provides “the exclusive means by which electronic surveillance . . . and
the interception of domestic wire, oral, and electronic communications may be
conducted.” 18 U.S.C. § 2511(2)(f) (emphasis
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added). Plaintiffs respectfully
seek a declaration that the Program is unlawful, and a permanent injunction against its use.
JURISDICTION
AND VENUE
4.
This case arises under the United States
Constitution and the laws
of the United States and
presents a federal question within this Court’s jurisdiction under Article III of the United States
Constitution and 28 U.S.C. § 1331. The Court also has jurisdiction under the Administrative
Procedures Act, 5 U.S.C. § 702. The Court has authority to grant declaratory relief
pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. The Court has authority to
award costs and attorneys’ fees under 28 U.S.C. § 2412. Venue is proper in this
district under 28 U.S.C. § 1391(e).
PARTIES
5.
The American Civil Liberties Union
(“ACLU”) is a 501(c)(4) nonprofit, non-partisan organization that engages in
public education and lobbying about the constitutional principles of liberty and
equality. The ACLU has more than 500,000 members and has members in every state,
including Michigan. The ACLU sues on its own behalf and on behalf of its staff and
members.
6.
The American Civil Liberties Union
Foundation (“ACLUF”) is a
501(c)(3) organization that educates the
public about civil liberties issues and employs lawyers who provide legal representation
free of charge in cases involving civil liberties. The ACLUF sues on its own behalf and on
behalf of its staff.
7. The American Civil
Liberties
Union of Michigan (“ACLU of
Michigan”) is a 501(c)(4) non-profit, non-partisan organization that
engages in public education
and lobbying about civil rights and civil liberties in the state of
Michigan. The
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ACLU of Michigan has
approximately 15,000 members. The ACLU of Michigan sues on its own behalf of on behalf of its
members.
8.
The National Association of Criminal
Defense Lawyers (“NACDL”) is a
501(c)(6) non-profit organization based
in Washington, D.C. whose direct membership is comprised of more than 13,000 criminal
defense lawyers. The NACDL has members in every state, including Michigan. The
NACDL sues on its own behalf and on behalf of its members.
9.
The Council on American-Islamic Relations
(“CAIR”) is a 501(c)(4)
non-profit organization based in
Washington, D.C. and is the largest Islamic civil liberties organization in the United
States. CAIR has chapters and members nationwide and members in over 25 countries. CAIR
sues on its own behalf and on behalf of its staff and members.
10.
The Council on American-Islamic Relations
Michigan (“CAIRMichigan”) is a
501(c)(3) organization and
represents the interest of the American Muslim community living in the state of
Michigan. CAIR-Michigan sues on its own behalf and on behalf of its members.
11.
Greenpeace, Inc. (“Greenpeace”) is a
non-profit advocacy
organization based in
Washington, D.C. dedicated to combating the most serious threats to the
planet’s biodiversity and
environment. Greenpeace has approximately 250,000 members nationwide, including members in
Michigan. Internationally, Greenpeace has a presence in 39 other countries and more than 2.5
million members. Greenpeace sues on its own behalf, and on behalf of its staff and
members.
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12. James Bamford
is an
award-winning author and journalist. He is one of the world’s leading experts on U.S.
intelligence and the National Security Agency and he has published numerous books and articles
on those topics. Mr. Bamford lives in Washington, D.C.
13.
Larry Diamond is a Senior Fellow at the
Hoover Institution at
Stanford University. He is a
leading expert on governance and development in Iraq, Asia, Africa and Latin America. Professor Diamond
lives in Stanford, California.
14.
Christopher Hitchens is a prominent
reporter and bestselling author
who has written numerous
articles and books on topics including U.S policy in the Middle East and Islamic fundamentalism. Mr.
Hitchens lives in Washington, D.C.
15.
Tara McKelvey is a senior editor at The
American Prospect, and has
written numerous articles and books on
topics including U.S. policy in the Middle East. Ms. McKelvey lives in Washington, D.C.
16.
Barnett R. Rubin is Director of Studies
and Senior Fellow at the New
York University Center on International
Cooperation. Professor Rubin is an internationally renowned scholar on
conflict and peace, with a particular focus on Afghanistan, South Asia, and Central
Asia, and has written numerous books and articles about Afghan history, politics, and
development. Professor Rubin lives in New York.
17.
Defendant National Security Agency /
Central Security Service
(“NSA”) is the agency of the United
States government responsible for administering the warrantless surveillance program
challenged in this case.
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18. Defendant
Lieutenant
General Keith B. Alexander is the Director of the NSA. Defendant Lieutenant General
Alexander has ultimate authority for supervising and implementing all operations and
functions of the NSA.
LEGAL
FRAMEWORK
19.
The First Amendment provides in relevant
part that “Congress shall make
no law . . . abridging the freedom
of speech, or of the press.”
20.
The Fourth Amendment provides that “[t]he
right of the people to be
secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.”
21.
Congress has enacted two statutes that
together supply “the
exclusive means by which
electronic surveillance . . . and the interception of domestic wire,
oral, and electronic
communications may be conducted.” 18 U.S.C. § 2511(2)(f) (emphasis added). The first is Title III of the
Omnibus Crime Control and Safe Streets Act of 1968 (“Title III”), 18 U.S.C. § 2510 et seq.,
and the second is the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et
seq. (“FISA”).
Title III
22.
Congress enacted Title III in response to
the U.S. Supreme Court’s
recognition, in Katz v. United States,
389 U.S. 347 (1967), that individuals have a constitutionally protected privacy
interest in the content of their telephone calls. Through Title III, Congress created a statutory
framework to govern the surveillance of wire and oral communications in law enforcement
investigations.
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23. In its current form,
Title
III authorizes the government to intercept wire, oral, or electronic communications in
investigations of certain enumerated criminal offenses, see 18 U.S.C. § 2516, with
prior judicial approval, see id. § 2518. In order to obtain a court order authorizing the
interception of a wire, oral, or electronic communication, the government must
demonstrate “probable cause for belief that an individual is committing, has committed,
or is about to commit” one of the enumerated criminal offenses. Id. § 2518(3)(a). It
must also demonstrate, among other things, “probable cause for belief that
particular communications concerning [the enumerated] offense will be obtained through [the]
interception,” id. § 2518(3)(b), and that “normal investigative procedures have been tried
and have failed or reasonably appear to be unlikely to succeed if tried or to be too
dangerous,” id. § 2518(3)(c).
24. Every court order
authorizing surveillance under Title III must include a provision requiring that the interception
be “conducted in a such a way as to minimize the interception of communications not
otherwise subject to interception under this chapter.” Id. § 2518(5).
25. While Title III generally
permits
surveillance only with prior
judicial authorization, the
statute includes a provision that allows for warrantless surveillance in “emergency situation[s]” – where, for
example, a “situation exists that involves . . . immediate danger of death or serious
physical injury to any person.” Id. § 2518(7)(a). Where an emergency situation exists and
“there are grounds upon which an order could be entered . . . to authorize . . .
interception,” the statute permits specified executive officials to authorize warrantless
surveillance “if an application for an order approving
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the
interception is made in
accordance with this section within forty-eight hours after the interception has occurred, or begins to
occur.” Id. § 2518(7)(b).
26. Title III specifies civil
and criminal
penalties for surveillance
that is not authorized. See
id. §§ 2511 & 2520.
27. As originally enacted,
Title III provided
that “[n]othing contained
in this chapter. . . shall
limit the constitutional power of the President to take such measures as he deems necessary to protect the
Nation against actual or potential attack or other hostile acts of a foreign power, to
obtain foreign intelligence information deemed essential to the security of the United
States, or to protect national security information against foreign intelligence activities.
Nor shall anything contained in this chapter be deemed to limit the constitutional power
of the President to take such measures as he deems necessary to protect the United
States against the overthrow of the Government by force or other unlawful means, or against
any other clear and present danger to the structure or existence of the
Government.” See 18. U.S.C. § 2511(3) (1976). As discussed below, Congress repealed this
provision in 1978. Foreign
Intelligence Surveillance Act
28. In 1978, Congress enacted
FISA to govern
the use of electronic
surveillance against foreign powers and
their agents inside the United States. The statute created the Foreign Intelligence
Surveillance Court, a court composed of seven (now eleven) federal district court judges,
and empowered this court to grant or deny government applications for electronic
surveillance orders in foreign intelligence investigations. See 50 U.S.C. § 1803(a).
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29. Congress enacted FISA
after
the U.S. Supreme Court held, in United States v. United States District Court
for the Eastern District of Michigan, 407 U.S. 297 (1972), that the Fourth Amendment does
not permit warrantless surveillance in intelligence investigations of domestic
security threats. FISA was a response to that decision and to the Report of the Senate
Select Committee to Study Government Operations with Respect to Intelligence
Activities, S.Rep. No. 94-755, 94th Cong., 2d Sess. (1976) (“Church Committee Report”),
which found that the executive had engaged in warrantless wiretapping of numerous
United States citizens – including journalists, activists, and Congressmen – who posed no
threat to the nation’s security and who were not suspected of any criminal offense.
The Church Committee Report warned that “[u]nless new and tighter controls are
established by legislation, domestic intelligence activities threaten to undermine our
democratic society and fundamentally alter its nature.”
30. When Congress enacted
FISA, it amended
Title III to provide that the
procedures set out therein and in FISA
“shall be the exclusive means by which electronic surveillance . . . and the interception
of domestic wire, oral, and electronic communications may be conducted.” 18
U.S.C. § 2511(2)(f) (emphasis added). FISA provides that no one may engage in
electronic surveillance “except as authorized by statute,” id. § 1809(a)(1), and it
specifies civil and criminal penalties for electronic surveillance undertaken without statutory
authority, see id. §§ 1809 & 1810. The Senate Judiciary Committee explained that “[t]he
basis for this legislation is the understanding – concurred in by the Attorney General –
that even if the President has an ‘inherent’ Constitutional power to authorize
warrantless surveillance for foreign intelligence
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purposes, Congress has the
power to regulate the exercise of this authority by legislating a reasonable warrant procedure governing
foreign intelligence surveillance.” S. Rep. 95- 604(I), reprinted at 1978 U.S.C.C.A.N. at
3917. The Committee further explained that the legislation was meant to “spell out
that the executive cannot engage in electronic surveillance within the United States
without a prior Judicial warrant.” Id. at 3906.
31. FISA defines “electronic
surveillance” broadly to include:
a. “the acquisition by an electronic,
mechanical, or other surveillance device of the contents of any wire or
radio communication sent by or
intended to be received by a particular, known United States person who is in the United States, if the
contents are acquired by
intentionally targeting that United States person, under circumstances in which a person has a reasonable
expectation of privacy and a
warrant would be required for law enforcement purposes”;
b. “the acquisition by an electronic,
mechanical, or other surveillance device of the contents of any wire
communication to or from a person in the United States, without the consent
of any party thereto, if such
acquisition occurs in the United States . . .”;
c. “the intentional acquisition by an
electronic, mechanical, or other
surveillance device of the contents of any radio communication, under circumstances in which a person has a
reasonable expectation of
privacy and a warrant would be required for law enforcement purposes, and if both the sender and all
intended recipients are located
within the United States”; and
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d. “the installation or use of an
electronic, mechanical, or other surveillance device in the United States
for monitoring to acquire information, other than from a wire or
radio communication, under circumstances in which a person has a
reasonable expectation of privacy and a warrant would be required
for law enforcement purposes.” 50 U.S.C. § 1801(f).
32. FISA defines
“contents” to include “any information concerning the identity of the parties
to such communication or the existence, substance, purport, or meaning of that
communication.” 50 U.S.C. § 1801(n). It defines “United States person” to include United States
citizens and lawful permanent residents. Id. § 1801(d).
33. In order to obtain
an
order from the FISA Court authorizing electronic surveillance, the
government must demonstrate, among other things, probable cause to believe that “the target
of the electronic surveillance is a foreign power or an agent of a foreign power” and that
“each of the facilities or places at which the electronic surveillance is directed
is being used, or is about to be used, by a foreign power or an agent of a foreign
power.” Id. § 1805(a)(3).
34. While FISA generally
prohibits surveillance without prior judicial authorization, it, like
Title III, includes a provision that allows for warrantless surveillance in
“emergency situation[s].” Id. § 1805(f). Where an emergency situation exists and “the factual
basis for issuance of an order under this subchapter to approve such surveillance
exists,” the statute permits the Attorney General to authorize warrantless surveillance
“if a judge having jurisdiction under section 1803 of this title is informed by the Attorney
General or his designee at the time of such authorization that
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the decision has been made to employ
emergency electronic surveillance
and if an
application in accordance with this subchapter is made to that judge as
soon as
practicable, but not more than 72 hours after the Attorney General
authorizes such surveillance.” Id.
35. FISA
also allows the Attorney General to authorize electronic surveillance without a
court order for up to one year if the Attorney General certifies in writing under oath that
the electronic surveillance is directed solely at the property or means of communication
used exclusively by a foreign power, that “there is no substantial likelihood
that the surveillance will acquire the contents of any communication to which a
United States person is a party,” and that there are minimization procedures
in place. Id. § 1802.
36. Finally, FISA permits
electronic
surveillance without a court order for fifteen days after a formal declaration
of war. Id. § 1811 (“Notwithstanding any other law, the President,
through the Attorney General, may authorize electronic surveillance without a court order
under this subchapter to acquire foreign intelligence information for a period not to exceed
fifteen calendar days following a declaration of war by the Congress.”).
37. FISA
requires the Attorney General to report to the House and Senate Intelligence Committees
twice a year regarding “all electronic surveillance” authorized under FISA. Id. §
1808(a). Statistics released annually by the Justice Department indicate that, between
1978 and 2004, the government submitted almost 19,000 surveillance applications
to the FISA Court. The FISC denied four of these applications;
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granted approximately 180 applications
with modifications; and granted the remainder without modifications.
FACTUAL
BACKGROUND
The
Program
38. According to published
news reports, in the fall of 2001 the NSA launched a secret
surveillance program (“the Program”) to intercept, without prior judicial authorization,
the telephone and Internet communications of people inside the United States. President
Bush ratified the Program in 2002. Since then, the President has reauthorized the Program
more than 30 times.
39. Under the Program, the
NSA engages in “electronic surveillance” as defined by FISA and Title
III.
40. Under the Program, the
NSA intercepts vast quantities of the international telephone
and Internet communications (hereinafter collectively “communications”) of
people inside the United States, including citizens and lawful permanent residents.
41. Under the Program, the
NSA also intercepts some purely domestic communications, that is,
communications among people all of whom are inside the United States.
42. Under the Program, the
NSA intercepts the communications of people inside the United States
without probable cause to believe that the surveillance targets have committed or are
about to commit any crime.
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43. Under the Program, the
NSA intercepts
the communications of people inside the United States without probable
cause to believe that the surveillance targets are foreign powers or agents
thereof.
44. Under the Program, the
NSA intercepts the communications of people inside the United States
without obtaining authorization for each interception from the President or the Attorney
General.
45. Under the Program, NSA
shift supervisors are authorized to approve NSA employees’ requests
to intercept the communications of people inside the United States.
46. Under the Program, the
NSA accesses communications in at least three ways.
47. First, the NSA uses
NSA-controlled satellite dishes to access communications that are
transmitted via satellite. Some of these NSA-controlled satellite dishes are located within
the United States.
48. Second, the NSA works
with telecommunications companies to access communications that pass
through switches controlled by these companies. These switches, which are
located inside the United States, serve as primary gateways for communications going into
and out of the United States. The switches connect to transoceanic fiber optic cables that
transmit communications to other countries.
49. Third, the NSA works
with Internet providers and telecommunications companies to access
communications transmitted over the Internet.
50. Under the Program, the
NSA intercepts,
retains, and analyzes communications in at least three ways.
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51. First, the
NSA obtains names, telephone numbers and Internet addresses from the cell phones,
computers, and other information found in the possession of persons deemed
suspicious. The NSA intercepts the telephone numbers and Internet addresses associated with
these people, as well as numbers and emails associated with anyone who communicates
with them, and continues to identify additional telephone numbers and Internet
addresses in an expanding network of people with fewer and fewer links to the original
suspect. Through this method, the NSA intercepts the contents of the communications of as many
as a thousand people inside the United States at any one time.
52. Second, the NSA
intercepts communications to and from particular countries, including Iraq
and Afghanistan. The intercepted communications include calls and emails between people
inside the United States and people in those other countries.
53. Third, the NSA engages in
wholesale
datamining of domestic and international communications. It uses
artificial intelligence aids to search for keywords and analyze patterns in
millions of communications at any given time. One purpose of this datamining is to
identify individuals for targeted surveillance.
54. Under the Program,
the NSA does not obtain judicial review before or after intercepting the
communications of people inside the United States.
55. The NSA has submitted
information obtained through the Program to the Foreign Intelligence Surveillance
Court in order to support applications for surveillance orders under FISA.
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Plaintiffs’ Allegations
56. Plaintiffs and their
staff and members (hereinafter “plaintiffs”) routinely communicate by email and
telephone with people outside the United States, including people in the Middle East
and Asia.
57. Some of the
plaintiffs, in connection with scholarship, journalism, or legal representation,
communicate with people whom the United States government believes or believed to
be terrorist suspects or to be associated with terrorist organizations.
58. Plaintiffs communicate
about subjects that are likely to trigger scrutiny by the NSA under the
Program.
59. Some of the plaintiffs
conduct research on the Internet concerning topics that are likely to trigger
scrutiny under the Program.
60. Because of the nature of
plaintiffs’
communications and the identities and locations of those with whom they
communicate, plaintiffs have a well-founded belief that their domestic and
international communications are being intercepted by the NSA under the Program.
61. The Program is
substantially impairing plaintiffs’ ability to obtain information from sources
abroad, to locate witnesses, to represent their clients, to conduct scholarship, and to
engage in advocacy.
62. The Program is
inhibiting the lawful, constitutionally protected communications of
plaintiffs and others not before the Court.
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American
Civil Liberties Union and American Civil Liberties Union Foundation
63. The ACLU is a
501(c)(4) non-profit, non-partisan organization that engages in public
education and lobbying about the constitutional principles of liberty and equality. The ACLU
has more than 500,000 members. The ACLU’s activities include lobbying Congress
on legislation that affects civil liberties, analyzing and educating the public
about such legislation, and mobilizing ACLU members and activists to lobby their
legislators to protect civil rights and civil liberties.
64. The ACLUF is a
501(c)(3) organization that educates the public about civil liberties and that
employs lawyers who provide legal representation free of charge in cases involving civil
liberties.
65. Since September 11, a
core priority of the ACLU and the ACLUF has been to publicize and oppose violations
of civil liberties effected in the name of national security. This work
frequently requires ACLU and ACLUF staff and members to communicate by email and
telephone with people and organizations outside the United States. The international
communications of ACLU and ACLUF staff and members concern a range of
subjects that are likely to trigger scrutiny under the Program.
66. For example, in
November and December 2002, ACLU staff traveled to Pakistan to interview men
whom the Immigration and Naturalization Service had arrested and held after the
terrorist attacks of September 2001 as “special interest” detainees but subsequently deported
without having been charged with any terrorism related offense. In preparation for this
trip, ACLU staff communicated by telephone and email with people and organizations
in Pakistan and India. For example, Marsha Zeesman, the ACLU’s Director of
Campaigns and Special Projects, and Emily Whitfield, the ACLU’s
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Media Relations Director, communicated by
telephone and email on multiple occasions with staff of the Human Rights Commission
of Pakistan, an organization based in Karachi. Whitfield also communicated by
email with Ash-har Quraishi, Cable News Network’s correspondent in Pakistan; with
Carlotta Gall, a New York Times correspondent in Pakistan; and with David
Rohde, a New York Times correspondent in India. Some of the communications of ACLU
staff concerned individuals whom the Justice Department’s website describes as
“linked to the September 11th investigation.”
67. In January 2004, the
ACLUF filed a petition with the United Nations Working Group on
Arbitrary Detention on behalf of some of the men whom the INS had held as “special
interest” detainees. The drafting of the petition required ACLUF attorney Omar Jadwat and
other ACLUF employees to communicate by telephone and email with former
detainees living in Pakistan, Egypt, and Jordan
.
68. Since March 2005, ACLUF
attorneys and
staff have been investigating instances in which the CIA has
transferred – “rendered” – foreign nationals to detention and interrogation in
facilities operated by the CIA outside U.S sovereign territory and to countries and
intelligence services that are known to employ torture and other forms
of
cruel, inhuman or degrading treatment. In connection with this
research, ACLUF attorneys and human rights advisors have
communicated by telephone and email with individuals whom the CIA has alleged are
associated with terrorist organizations. ACLUF attorneys and staff have also
communicated by telephone and email with attorneys representing these individuals.
69. ACLUF attorneys
currently represent Khaled El-Masri, a German citizen residing in
Neu-Ulm, Germany, whom the CIA rendered to a CIA-run prison in
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Afghanistan in January 2004. ACLUF human
rights advisor Steven Watt regularly communicates by telephone and email with
Mr. El-Masri and with Mr. El-Masri’s German attorney, Manfred Gnjidic. In
addition, as part of the ACLU’s research into the extraordinary rendition
program, Mr. Watt regularly communicates by telephone with attorneys based in Sweden
and Egypt representing Ahmed Agiza and Mohammed Alzery, whom the CIA rendered
from Sweden to Egyptian custody in December 2001, and with the Italian attorney
representing Abu Omar, whom the CIA rendered from Italy to Egyptian custody in
February 2003.
70. ACLUF attorneys also
currently represent a number of individuals who were detained and abused
by United States forces at Abu Ghraib prison in Iraq and at other detention
facilities in Iraq and Afghanistan. ACLUF attorney Omar Jadwat and ACLUF human rights
advisor Jamil Dakwar regularly communicate by telephone and email with individuals in
Iraq and Afghanistan, including plaintiffs in the litigation, concerning the treatment
of prisoners held by United States forces in those countries. Some of these
communications concern individuals who remain in the custody of United States forces.
71. Because of the content
of their communications and the identities and locations of individuals
with whom they are communicating, ACLU and ACLUF staff have a well-founded
belief that their communications are being intercepted by the NSA under the Program.
72. The Program
substantially impairs the ability of the ACLU and ACLUF to engage in
communication that is vital to their respective missions. The Program requires ACLU and ACLUF
staff and members to minimize the sensitive information
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they include in their communications
because of the risk that such information will be intercepted. In addition,
ACLU and ACLUF staff and members believe that individuals abroad are more reticent
in communicating with them because of the possibility that their communications are being
intercepted by the NSA under the Program.
73. Attorneys at the ACLUF
have
represented to many of their clients that their telephone and email communications
with ACLUF attorneys are confidential and covered by the attorney-client privilege.
The willingness of ACLUF clients to consult with ACLUF attorneys and to provide
information to ACLUF attorneys is based in part on that assurance. The
Program is inhibiting candid communication between ACLUF attorneys and their
clients and is thereby compromising the ability of ACLUF attorneys to effectively represent
their clients.
American Civil Liberties Union of Michigan
74. The ACLU of Michigan
is the Michigan affiliate of the ACLU and is dedicated to defending
the civil liberties of Michigan residents. Its activities include lobbying the Michigan
legislature on proposed bills that affect civil liberties, educating the Michigan public about
such legislation and mobilizing ACLU of Michigan members and activists to lobby
their representatives to protect civil rights and civil liberties.
75.
Since September 11, 2001, a core priority
of the ACLU of Michigan
has
been to publicize and oppose violations of civil liberties affected in
the name of national security. For example, the Michigan ACLU
established a “Safe and Free Project” devoted to post-9/11 civil liberties
issues and hired a staff attorney for the project. It opposed state legislation
that it believed unnecessarily sacrificed civil liberties in the name of national
security. It mobilized its members to lobby local government bodies
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across the state, resulting in the
enactment of sixteen local resolutions opposing provisions of the USA
PATRIOT Act that pose the most serious threats to civil liberties. The manner in which
post-9/11 measures impact Arab-Americans is especially important to the Michigan ACLU
affiliate because southeast Michigan has the highest concentration of
Arab-Americans in the country.
76. The ACLU of Michigan
has many members who regularly communicate with people outside the
United States, including in the Middle East and Asia. Because of the
nature of these communications, the identities of the individuals with whom they
communicate, and the locations of individuals with whom they communicate, ACLU of
Michigan members have a well-founded belief that their communications are being
intercepted by the NSA under the Program. The Program is inhibiting ACLU of
Michigan members from communicating freely and candidly in their personal and professional
communications.
Noel Saleh
77. Noel Saleh is a member
of the ACLU of Michigan who resides in Wayne County, Michigan. He is a United
States citizen. He is a licensed attorney in the State of Michigan and
served as the staff attorney for the American Civil Liberties Union of Michigan’s “Safe and
Free Project” from 2002 to 2004.
78. Mr. Saleh has been a
community activist for Arab causes both in the United States and in the
Arab World. Since 1989 he has served on the board of ACCESS, the Arab
Community Center for Economic and Social Services. Currently, he is the Chair of the
ACCESS Board of Directors. As part of his role as an ACCESS Board member, Mr. Saleh is
frequently called upon to comment on current affairs and events
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affecting the Arab American community.
79. Mr. Saleh has friends
and family in Lebanon, Jordan and the Occupied Palestinian Territories
with whom he frequently communicates by phone and by email. Prior to becoming aware
of the Program, Mr. Saleh communicated with family members about various political
topics and their opinions on current events including Israeli repression of
Palestinians under occupation, Palestinian Right of Return and
statehood, Islamic fundamentalists, terrorism, Osama
bin Laden, al Qaeda, and America’s role in each of these areas.
80. Because of his
frequent communications with numerous people in the Middle East and other
foreign countries about topics likely to trigger monitoring, Mr. Saleh has a well-founded
belief that his communications are currently being intercepted by the NSA under the
Program.
81. The likelihood that
his communications are being intercepted by the NSA under the Program
impinges on Mr. Saleh’s ability to communicate freely and candidly in his
international calls and emails. Since learning of the Program in news reports, he has refrained
from talking about or emailing friends and family abroad about topics that might trigger
monitoring.
82. The Program also
interferes with Mr. Saleh’s efforts to promote peace and justice in this
country. Before he became aware of the Program, he felt free to engage in free and open
communication with people in other countries about critical issues of the day. He
gained unique insight from these conversations into U.S. foreign policy that he could not
gain from the media in this country. Because of the NSA Program, he is less
willing to engage in substantive discussions with people abroad and
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therefore is not able to either gain these
unique insights or share them with others.
Mohammed
Abdrabboh
83. Mohammed Abdrabboh is
a member of the ACLU of Michigan and has been a member of the ACLU of Michigan’s
Board of Directors since 2002. He is a United States citizen and a licensed
attorney in the State of Michigan, with a practice in immigration, criminal defense and civil
rights law, in Wayne County, Michigan. Mr. Abdrabboh serves as a Commissioner on the
Michigan Civil Rights Commission, to which he was appointed by the Governor in
May 2003. Mr. Abrabboh also teaches a course on civil liberties and national
security at the University of Michigan at Dearborn.
84. Mr. Abdrabboh
frequently communicates by telephone and email with family in the West Bank, Gaza, and
Jerusalem. After law school, Mr. Abdrabboh worked for Al Haq, a human rights organization
in the West Bank. He frequently communicates with friends and acquaintances he met
while working there. He also communicates a number of times per month by telephone
and email with friends and acquaintances in Saudi Arabia.
85. Approximately
ninety-percent of Mr. Abdrabboh’s clientele come from countries in the Middle East. As part of
his immigration practice, he regularly represents individuals who live in the Middle East
and are seeking to enter the United States, and as part of his representation he must
conduct all communications with them through telephone and email. The nature of Mr.
Abdrabboh’s law practice requires him to communicate regularly by telephone and
email with people in Lebanon, the West Bank and Gaza. His practice also requires that
he occasionally communicate with individuals by telephone and email in Jordan,
Afghanistan and Yemen. These communications are
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essential in providing effective
representation to his clients.
86. As part of his
criminal defense practice, Mr. Abdrabboh has represented and continues to
represent people the government has suspected of allegedly having some link to terrorism or
terrorist organizations.
87. Because of the nature
of his communications, the identities and locations of people with whom he
communicates, Mr. Abdrabboh has a well-founded belief that his
communications are being intercepted by the NSA under the Program.
88. The Program has
inhibited communications between Mr. Abdrabboh and his family and
friends because he is less candid about his political views and avoids saying things that are
critical of the U.S. government over the telephone or through email.
89. The Program has
inhibited communications between Mr. Abdrabboh and his clients, both
foreign and domestic. Since learning of the Program, Mr. Abdrabboh has limited his
communications about sensitive or privileged matters over the telephone or by email for
fear the government is monitoring the communication. Instead, he has tried to limit
such communications to in-person meetings, which has greatly impaired his ability to
quickly get information he needs for the purpose of representing clients. Mr. Adbrabboh
also believes that some of his clients have now stopped giving him sensitive information
over the telephone. In one instance, a client who now lives in Afghanistan refused to
share information over the telephone with Mr. Adbrabboh that was necessary to his
representation in an immigration matter because the client feared the communication was being
monitored by the government.
Nabih
Ayad
90. Nabih Ayad is a member
of the ACLU of Michigan. He is a licensed
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attorney whose practice includes
immigration, criminal defense and civil rights cases, in Wayne County, Michigan.
Since 2002, he has served on the Lawyers Committee of the ACLU of Michigan, a
committee that makes recommendations to the Board of Directors about which cases to
pursue.
91. In his immigration
practice, Mr. Ayad represents individuals throughout the Middle East and South
Asia including individuals from Lebanon, Syria, Jordan, Egypt, United Arab
Emirates, Iraq, Iran and Saudi Arabia. The government has attempted to deport some
of his clients because of suspected ties to terrorism. For example, the government
suspected some of his clients of supporting, or having ties to, the military wing of
Hezbollah, a group that has been designated a terrorist organization by the Department of
State. Mr. Ayad has also represented individuals from Lebanon, Liberia, and Trinidad who
seek political asylum in this country. He successfully prevented 130 immigrants
from Lebanon and Yemen accused of visa fraud from being deported through an
expedited removal process. In the course of his immigration practice, Mr. Ayad is
required to communicate by phone or through email with clients, clients’ families and
associates, and witnesses in the countries mentioned above.
92. Mr. Ayad has
represented criminal defendants from Middle Eastern countries who have been
accused of terrorism-related crimes. For example, he represented one
individual from Jordan with suspected ties to the Taliban who came into this country with $12
million of counterfeit checks. He represented a man for Yemen who case was dismissed at
the preliminary examination after he was wrongfully accused of attempting to blow up
a federal building in Detroit. He also represented individuals from Lebanon who were
accused of smuggling weapons oversees to Hezbollah. Through
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the course of his criminal defense work,
it is necessary to prepare a defense by communicating with clients, clients’
families, witnesses and others in the client’s home countries.
93. Mr. Ayad is a
naturalized U.S. Citizen who was born in Lebanon. He has family and friends in
Lebanon and Germany with whom he communicates by phone and email. When speaking
with friends and family in the past, he discussed current events in the Middle East
including the war in Iraq and terrorism.
94. Because of
the nature of his communications, the identities of the some of the people with whom
he communicates and the subject matter of conversations, Mr. Ayad has a well-founded
belief that his communications are being intercepted by the NSA under the Program.
95. The Program has
already inhibited communications between Mr. Ayad and individuals in the
Middle East and Asia that are necessary to provide effective legal representation to his
clients. Because of the Program, Mr. Ayad will not have certain kinds of conversations by
phone or email for fear that the government might be monitoring his
communications. For example, he will no longer communicate by phone or email about important
strategic matters and about certain evidence in terrorist-related immigration or criminal
cases. In addition, because of the program Mr. Ayad will even avoid discussing certain
political topics with family and friends abroad for fear that such conversations will
trigger monitoring.
Council
on American-Islamic Relations
96. Plaintiff
CAIR is a non-profit and non-partisan grassroots organization dedicated to enhancing
the general public’s understanding of Islam, protecting civil
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liberties, empowering American Muslims and
building coalitions that promote social justice and mutual understanding. CAIR is
the largest Islamic civil liberties organization in the United States with more than 30
affiliated sister chapters throughout the United States and Canada representing the
interests of over seven million American Muslims.
97. CAIR’s Communications
Department works in conjunction with local, national and international media outlets
to ensure that an accurate portrayal of Islam and Muslims is presented to the general
public. CAIR’s daily news release service reaches individuals and international media
outlets on a daily basis. Because of its communications work, CAIR has become a
respected and credible source for journalists and other media professionals worldwide.
CAIR representatives are regularly interviewed by CNN, BBC World Service,
FOX News, The Washington Post, The New York Times, and The Los Angeles Times, as
well as media outlets throughout the Muslim world, such as Al-Jazeera,
Al-Arabiya, the Middle East Broadcasting Company (MBC), GEO TV (Pakistan), Al-Ahram, and
other international print and broadcast outlets.
98. Because of its
advocacy work, CAIR makes international telephone calls and write emails to journalists
worldwide.
99. CAIR’s international
media communications are vital to its organizational goals of enhancing
understanding of Islam, facilitating inter-cultural understanding, ensuring fair and accurate
portrayals of Islam and Muslims in the media, and serving as a bridge between American
and the Muslim world. CAIR’s
communications with members of the American Muslim community are also
an essential part of its
organizational success. Many members of the American Muslim community
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communicate, both electronically and
otherwise, to their families abroad.
100. CAIR’s international
media communications cover a range of subjects that are likely to
trigger NSA scrutiny under the Program. These subjects include Islam, extremism, post-9/11
policies, surveillance, terrorism and counterterrorism, the war in Iraq and the American
Muslim community.
101. CAIR’s Communications
Department drafts press releases, edits opinion articles and coordinates public
education campaigns related to CAIR’s mission and vision. In this role,
CAIR’s Communications Department receives calls from journalists from all over
the world who seek information or official comment from the American Muslim
perspective on issues related to CAIR’s press releases or official positions.
102. The Program
substantially impairs the ability of CAIR to engage in communications that are
vital to its mission and the ability of the American Muslim community to freely
communicate abroad without the fear of being placed under unlawful surveillance.
103. As a civil rights
organization, CAIR also communicates confidential information about pending
civil rights cases via international telephone calls and emails.
104. For example, after
two high-profile individuals, musician Cat Stevens (known as Yusuf Islam
since his conversion to Islam) and world-renowned academic Tariq Ramadan, named one
of TIME Magazine’s Top 100 Innovators, were denied admission to the United
States; CAIR personally spoke with and emailed each of the individuals abroad.
105. The members of the
American Muslim community, many of whom are
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members of CAIR, are engaged in efforts of
commerce, education and social services with individuals and institutions in the
Muslim world. The work of the American - Muslim community in being able to engage
freely in commerce, education and social services in the Muslim world is a vital
part of building bridges between America and the Muslim world and thus, is integral to
America’s national security and vital interests. The Program substantially impairs the ability
of the American Muslim community to engage in communications that are vital to
America’s national interests.
106. The communications of
CAIR, its members and the American Muslim community with individuals and
journalists abroad are an integral part of the mission and vision of CAIR, specifically related to
building bridges of understanding between America and the Muslim world. The
possibility that the American Muslim community’s international electronic communications
are being intercepted by the NSA impinges their ability to communicate freely and
candidly in their international communications.
CAIR-Michigan
107. CAIR-Michigan is a
non-profit and non-partisan grassroots organization dedicated to enhancing the general
public’s understanding of Islam, protecting civil liberties, empowering American Muslims
and building coalitions that promote social justice and mutual understanding.
108. Because of its
advocacy and civil rights work, CAIR-Michigan makes international telephone calls and writes
emails to journalists worldwide related to the large American Muslim population within
the state of Michigan.
109. CAIR-Michigan’s media
communications are vital to its organizational goals of enhancing a better understanding
of Islam, facilitating inter-cultural
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understanding and ensuring fair and
accurate portrayals of Islam and Muslims in the media. CAIR-Michigan’s communications are
also essential to the organization’s communication with its members in the
American Muslim community in Michigan; many of whom communicate, both
electronically and otherwise, to their families abroad.
Nazih Hassan
110. Nazih Hassan is a
member of CAIR-Michigan who resides in Washtenaw County, Michigan. He was born
in Lebanon in 1969, and became a legal permanent resident of the United States
in 2001. From 2002 to 2003, he served as the president of the Muslim Community
Association of Ann Arbor. He has served as chair on MCA’ Board of Directors from mid-2005
to the present. Mr. Hassan works as a technology consultant.
111. Mr. Hassan has
friends and family in Lebanon, Saudi Arabia, France, Australia and Canada with whom he
frequently communicates by telephone and email. Among the people with whom he
communicates by phone and email are his friends Islam Almurabit and Rabih Haddad.
112. Mr. Haddad is a
native of Lebanon who was educated in the United States and lived in Ann Arbor, Michigan
for more than 3 years. Mr. Haddad was an active member and popular volunteer
teacher at the mosque to which Mr. Hassan belongs. Mr. Haddad co-founded Global
Relief Foundation (GRF) in 1993, a humanitarian organization which the
federal government has accused of having provided material support for terrorism. In
December 2001, Mr. Haddad was arrested for an immigration violation on the same day
that the offices of GRF were raided. Mr. Haddad was held for about a year before being
deported to Lebanon. As one of the two media
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coordinators for the Free Rabih Haddad
Committee, Mr. Hassan drafted press releases, spoke to the media and organized public
demonstrations against the detention of Mr. Haddad. Mr. Hassan visits Rabih Haddad
when he returns to Lebanon for vacations.
113. Islam Almurabit, the
former executive director of Islamic Assembly of North Americh, lived in Ann Arbor for
approximately 7-8 years. In 2003, after the IANA offices were raided in Ypsilanti, Mr.
Almurabit was visited by the FBI and accused of being a supporter of extremism. Rather
than face continual harassment by the FBI, Mr. Almurabit left the United States in 2004
or 2005 and moved to Saudi Arabia.
114. Prior to becoming
aware of the NSA Program, Mr. Hassan would speak with or communicate with family members
about various political topics and their opinions on current events including
Islam and the war in Iraq, Islamic fundamentalists, terrorism, Osama bin Laden, al Qaeda, the
war in Afghanistan and the riots in France and Australia. Mr. Hassan would also
participate in online discussion groups or bulletin boards about the war in Afghanistan on
foreign websites in order to learn what people from other countries were thinking and to
voice objections to those who favored extremism.
115. Because of his
activism in the United States, his friendship with Islam Almurabit and Rabih Haddad, and his
frequent communications with numerous people in the Middle East and other foreign
countries about topics likely to trigger monitoring, Mr. Hassan has a well-founded belief that his
communications are currently being intercepted by the NSA under the Program.
116. The likelihood that
his communications are being intercepted by the NSA under the Program impinges on Mr.
Hassan’s ability to communicate freely and
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candidly in his calls and emails. Since
learning of the NSA Program in news reports, he has refrained from talking about or
emailing friends and family abroad about any topic that might trigger monitoring. He has not
called his friends Islam Al-Murabit or Rabih Haddad or engaged in email communications
with them about anything political for fear that such communications would somehow be
taken out of context or misconstrued as support for extremism. Finally, he no
longer visits websites or discussion groups where some people advocate extremism, even
though his purpose in participating in the discussion groups previously had been to
oppose extremism.
117. The Program also
interferes with Mr. Hassan’s efforts to promote peace and justice in this country. Before he
became aware of the NSA Program, he felt free to engage in free and open communication
with people in other countries about critical issues of the day. He gained unique
insight from these conversations into U.S. foreign policy that he could not gain from the
media in this country. Mr. Hassan used these communications in his political work in
the United States to educate Americans about the consequences of U.S. policy abroad.
Because of the Program, he is no longer engaging in substantive discussions with people
abroad and therefore is not able to either gain these unique insights or share them with others.
Greenpeace
118. Plaintiff Greenpeace is an
advocacy organization dedicated to combating the most serious threats to the
planet’s biodiversity and environment. Since 1971, Greenpeace has been at the
forefront of environmental activism through nonviolent protest, research, lobbying, and public
education. Greenpeace has approximately 250,000 members and seven offices in the
United States. Greenpeace is associated with
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international Greenpeace entities, which
have a presence in 39 other countries and more than 2.5 million members.
119. As part of its
international environmental advocacy, Greenpeace leaders and staff engage in international
communications, via telephone and email, on a daily basis. Individuals contacted include
staff members of Greenpeace offices in other countries, representatives of
multinational organizations, governmental officials, scientific experts, and Greenpeace
members. Greenpeace communicates by telephone and email with people in the Netherlands,
England, Germany, Canada, Mexico, Australia, Brazil, India and Japan.
120. Greenpeace is aware that
it has been targeted for surveillance in the past by the NSA. For example, in 1992 British
intelligence officials revealed to the London Observer that in the 1990s the NSA had
used the word “Greenpeace” as a keyword to intercept communications outside the
United States. Government documents recently obtained under the Freedom of Information
Act (FOIA) reveal that Greenpeace has been the subject of surveillance by the FBI
and Joint Terrorism Task Forces, whose internal documents contend that the organization
is associated with “suspicious activity with a connection to international
terrorism.” Documents obtained through the FOIA also indicate that the FBI has used
confidential informants to obtain information about Greenpeace activities.
121. Greenpeace’s recent
activities also make the organization a likely target for government surveillance. In the past
several years, Greenpeace has repeatedly engaged the Bush administration through
public protest and activism. In 2001, Greenpeace held public demonstrations
outside the personal residences of President Bush
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and Vice President Cheney, attacking the
administration’s environmental and energy policies. Greenpeace has also actively
publicized the Bush administration’s ties to the oil industry, particularly to ExxonMobil.
Seventeen Greenpeace activists were arrested in 2001 in connection with a protest aimed
at disrupting a “star wars” missile test at Vandenberg Air Force Base. In 2002,
Greenpeace protestors chained themselves to gas pumps at ExxonMobil stations in New York
and Los Angeles, carrying banners that called on the Bush administration to stop
favoring the oil industry over the environment. In 2003, there were several European
protests against the war in Iraq by Greenpeace activists, including one at Rota Naval
Air Base in Spain. More recently, a team of international Greenpeace experts exposed
the United States’ military’s failure to secure and contain nuclear waste facilities in
Iraq.
122. Because of the nature of
Greenpeace’s international communications, Greenpeace’s recent activities, and the
U.S. government’s past surveillance of Greenpeace, Greenpeace has a well-founded
belief that its international communications are currently being intercepted by the
NSA under the Program.
123. Greenpeace’s telephone
calls, emails, and other Internet communications with individuals and
organizations abroad are vital to its organizational goal of addressing environmental problems
of global magnitude. This mission requires free and open communication with
international colleagues, members, experts, and leaders of governments and industry.
124. The Program substantially
impairs the ability of Greenpeace to engage in communications that are vital to its
mission. Knowledge of the Program requires Greenpeace staff to minimize the
sensitive information they include in their international
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electronic communications and to be more
circumspect and less candid in their communications to members and others.
Greenpeace also believes that people abroad are more reticent in communicating with
Greenpeace because of the likelihood that their conversations will be monitored by the
NSA under the Program. Greenpeace fears that the Program will enable the U.S.
government to disrupt Greenpeace’s lawful activities by taking preemptive action against
legitimate, and peaceful, protests.
National
Association of Criminal Defense Lawyers
125. The National Association
of Criminal Defense Lawyers (NACDL) is a District of Columbia non-profit
organization whose membership is comprised of over 13,000 lawyers and 28,000 affiliate
members representing every state. The NACDL was founded in 1958 to promote study and
research in the field of criminal law; to disseminate and advance knowledge of the
law in the area of criminal practice; and to encourage the integrity, independence,
and expertise of defense lawyers in criminal cases.
126. NACDL is concerned with
the erosion of due process and the rights of criminal defendants and suspects
generally, but particularly so with respect to the impact of the “War on Terror” upon the criminal
justice system, due process, and the protections afforded by the Fourth, Fifth, and Sixth
Amendments.
127. NACDL has been active with
respect to those issues. NACDL has filed amicus briefs in a considerable number of
cases involving the infringement of rights precipitated by the War on Terror,
including in the Courts of Appeal, the Foreign Intelligence Surveillance Court of
Review, and the Supreme Court. NACDL has been involved as amicus in all of the cases
involving the rights of detainees, either U.S. citizens or those held at Guantanamo Bay,
Cuba, in the lower and appeals courts.
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128. NACDL also has at least
three committees that address these issues: its Select Committee on Military Tribunals,
its International Law Committee, and its Ethics Committee. Its Amicus Curiae Committee
has also been intensively involved in these issues.
129. At least fifty NACDL
members currently represent or have represented terrorism suspects, and many of these
members regularly communicate with people outside the United States. Because of the
nature of these communications, the identities of the individuals with whom they
communicate, and the locations of individuals with whom they communicate, NACDL members have
a well-found belief that their
communications are being intercepted by the NSA under the Program. The
Program is inhibiting
communications that are necessary for NACDL members to provide effective legal representation to their clients.
Joshua L. Dratel
130. Joshua L. Dratel is a
nationally recognized criminal defense lawyer in New York City. Mr. Dratel is a member of
NACDL’s Board of Directors and Co-Chair of its Select Committee on Military
Tribunals. He is also co-editor of The Torture Papers: The Legal Road to Abu Ghraib
(Cambridge University Press: 2005).
131. Mr. Dratel currently
represents a number of individuals who have been accused by the federal government of
terrorism-related crimes. For example, Mr. Dratel is lead counsel for David Hicks, whom the
United States government has detained as an enemy combatant at Guantanamo Bay since
2001, and who is being prosecuted by the U.S. military commission. Mr. Dratel also
represents Lynne Stewart, a criminal defense lawyer accused of providing material
support for terrorism. Mr. Dratel also represents
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Mohamed El-Mezain in a federal prosecution
charging material support for terrorism, and Wadih El-Hage, a defendant in United
States v. Usama Bin Laden (the Embassy Bombings case), in Mr. El-Hage’s pending
appeal of his conviction. Mr. Dratel also represented Sami Omar Al-Hussayen, who
was acquitted in federal court in Idaho of providing material support for terrorism
based on the technical support he provided to web sites and discussion boards about
terrorism and jihad.
132. In representing these and
other clients, Mr. Dratel routinely engages in telephone and email communications with
witnesses, foreign counsel, experts, journalists, and government officials in
Israel, Germany, Australia, the United Kingdom, and elsewhere. He also routinely
communicates with the family members of his clients, many of whom reside in other countries.
These communications are essential to his effective representation of his clients.
133. In representing these and
other clients, Mr. Dratel conducts research and accesses discussion boards on the
Internet as an integral part of the investigatory process. This research often includes review of
web sites that allegedly support terrorism and jihad, and/or discuss the issues,
including qoqaz.com, azzam.com, alasr.ws, palestineinfo. org, islamway.com, and cageprisoners.com,
among many others. Because of the charges against Sami Omar Al-Hussayen,
Mr. Dratel reviewed hundreds of such web sites and discussion boards in
preparation for trial. Mr. Dratel also engages in keyword searches using terms such as “Usama bin
Laden,” “Chechnya,” “qoqaz,” “Sheikh Safer al-Hawali,” “Sheikh Salman al Odah,” and
“Hamas.”
134. Because of the nature of
his communications, the identities of people with whom he communicates,
and the subject matter of his online research, Mr. Dratel
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has a well-founded belief that his
communications are being intercepted under the Program.
135. The Program has already
inhibited communications between Mr. Dratel and individuals in other countries that
are necessary to provide effective legal representation to his clients. Since
learning of the Program, Mr. Dratel has ceased having certain kinds of discussions over the
telephone or by email for fear that the government may be monitoring his communications.
Nancy
Hollander
136. Nancy Hollander, a member
and past President of NACDL, is a nationally recognized criminal defense
lawyer in Albuquerque, New Mexico. Ms. Hollander is co-chair of NACDL’s
International Affairs Committee and also in charge of recruiting volunteers to represent
prisoners at Guantanamo.
137. Ms. Hollander currently
represents organizations and individuals who have been accused by the federal
government of terrorism-related crimes. For example, Ms. Hollander represents Holy Land
Foundation and its Executive Director Shukri Abu Baker, who are currently under indictment
in Dallas, Texas charged with providing material support to a terrorist
organization. She also represents Mohammedou Ould Salahi, who the federal government has
declared an enemy combatant and who has been detained at Guantanamo Bay since 2002.
She also represented Fawaz Damrah, who was charged and convicted in Ohio of
naturalization crimes but whom the federal government attempted to link to Sami Al-Arian, a
professor accused and recently acquitted in Florida of terrorism-related crimes.
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138. The nature of Ms.
Hollander’s legal practice requires her to communicate regularly by email and
telephone with individuals outside the United States. These communications are essential in
providing effective representation to her clients. For example, in representing these and
other clients, Ms. Hollander routinely communicates by telephone and email with
witnesses, foreign counsel, experts, journalists, government officials and
political figures in Israel, Gaza, the West Bank, Egypt, and other countries in the Middle
East, as well as in Mauritania.
139. In representing these and
other clients, Ms. Hollander also conducts research on the Internet about terrorism,
religion, and politics in the Middle East and South Asia, and also participates in
Internet discussions on these topics. Ms. Hollander routinely searches web sites using key
words such as “Hamas,” “Palestianian Islamic Jihad,” “muhajadin,” and “suicide
bomber.” This research is a necessary component of the investigatory process.
140. Because of the nature of
her communications, the identities of people with whom she communicates, and the
subject matter of her online research, Ms. Hollander has a well-founded belief that
his communications are being intercepted by the NSA under the Program.
141. The Program has already
inhibited communications between Ms. Hollander and individuals in the Middle
East that are necessary to provide effective legal representation to her clients. Since
learning of the Program, Ms. Hollander has ceased having certain kinds of discussions over
the telephone or by email for fear that the government may be monitoring her
communications. Ms. Hollander has decided that she will no longer communicate by phone
or email about any strategic or privileged
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matters with her clients charged in
terrorism related cases, or with witnesses, experts, potential experts and co-counsel outside
the United States. In one current case, Ms. Hollander is planning an expensive trip
to obtain information that she would have previously obtained via telephone and
email.
William W. Swor
142. William W. Swor is a
member of the NACDL, and a member of the Board of Directors of the Criminal
Defense Attorneys of Michigan. He maintains a private practice of law in Detroit,
Michigan. His practice is primarily in the areas of federal criminal defense and immigration
law.
143. Mr. Swor has represented,
currently represents and expects to represent in the future, individuals who were
investigated and or prosecuted under one or more of the federal terrorism-related statutes.
For example, Mr. Swor represents Abdel-Ilah Elmardoudi who was wrongfully accused by
the United States of providing material aid in support of terrorism. Mr. Swor also
represents Mahmoud Kourani who was accused by the United States of providing
material aid to Hezbollah, in Lebanon. Mr. Swor has other matters pending, both criminal and
immigration matters, in several federal districts in which his clients are being
investigated or prosecuted under one or more of the federal terrorism-related statutes.
144. In representing these and
other clients, Mr. Swor conducts research on the Internet about terrorism, religion
and politics in the Middle East, Eastern Europe, Africa and the Caucasus Mountain region.
This research includes review of sites that support terrorism and/or organizations
that the United States has declared Foreign Terrorist Organizations (FTOs). This
research is a necessary component of his
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preparation of his cases. Based upon
discovery provided by the United States in pending matters, he will continue to need to
refer to these sites for information.
145. The nature of Mr. Swor’s
legal practice also requires him to communicate by telephone with individuals
outside of the United States, including individuals whose communications are
likely to have been intercepted under the Program. These individuals are witnesses,
potential experts, journalists, and others who are located in the Middle East, e.g.
Lebanon, and Jordan, as well as western European countries such as France and England.
These communications are essential in providing effective representation to his clients.
146. Mr. Swor has a
well-founded belief that his communications are being intercepted by the NSA under the program.
The Program has already inhibited communications between Mr. Swor and
individuals in the Middle East that are necessary to provide effective legal representation
to his clients. Since learning of the Program, Mr. Swor has avoided having certain kinds of
discussions over the telephone or email for fear that the government may be monitoring his
communications. Mr. Swor believes that he will now have to schedule one or more
trips overseas to interview witnesses and to obtain information that he would have previously
been able to obtain via telephone and email communications.
James
Bamford
147. Plaintiff James Bamford,
of Washington, D.C., is an award-winning and bestselling author and journalist. He is
one of the world’s leading experts on U.S. intelligence generally and the National
Security Agency specifically. Mr. Bamford is the author of A Pretext for War: 9/11, Iraq,
and the Abuse of America’s Intelligence
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Agencies (Doubleday, 2004), Body of
Secrets: Anatomy of the Ultra-Secret National Security Agency (Doubleday, 2001), and
The Puzzle Palace: A Report on NSA, America’s Most Secret Agency (Houghton
Mifflin, 1982). Mr. Bamford has written extensively on national security issues
for a range of newspapers and magazines, including investigative cover stories for
The New York Times Magazine, The
Washington Post Magazine, and The Los Angeles Times Magazine. From 1989
-1998, he was the Washington
investigative producer for ABC’s World News Tonight with Peter Jennings. In 2002, he was a distinguished
visiting professor of National Security at the Goldman School of Public Policy,
University of California, Berkeley.
148. As an expert on
intelligence, Mr. Bamford has testified before committees of both the Senate and House
of Representatives as well as the European Parliament in Brussels and the
International Criminal Tribunal for the former Yugoslavia. He has also been a guest speaker at the
Central Intelligence Agency’s Senior Intelligence Fellows Program, the National Security
Agency’s National Cryptologic School, the Defense Intelligence Agency’s Joint
Military Intelligence College, the Pentagon’s National Defense University and Air War
College, and the Director of National Intelligence’s National
Counterintelligence Executive.
149. Mr. Bamford first
experienced the impact of illegal NSA eavesdropping on Americans, and the lengths to which
the U.S. government will go to prevent disclosure of its spying programs, thirty
years ago. As Mr. Bamford was writing The Puzzle Palace, he discovered that the
Justice Department in 1976, during the Ford administration, began a secret criminal
investigation into widespread illegal domestic eavesdropping by the NSA. Mr. Bamford
filed a request under the Freedom of
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Information Act for documents dealing with
that investigation. Several hundred pages of documents were eventually released to him
in 1979. The documents showed that the FBI questioned senior NSA officials about the
possibility of their having violated federal criminal laws by engaging in warrantless
eavesdropping of American citizens. “The investigation,” said the documents,
“uncovered 23 different categories of questionable activities.” However, because of the
secrecy of the operations, and the fact that law was undefined in this area, the Justice
Department decided against prosecution and instead recommended that new laws be created to
outlaw this type of activity.
150. Shortly after President
Ronald Reagan took office, the Justice Department, at the request of the NSA,
notified Mr. Bamford that the documents had been “reclassified” as top secret and
demanded their return. When Mr. Bamford refused, saying that they had been properly
declassified and released to him by the Carter administration, he was threatened with
prosecution. Mr. Bamford then cited the presidential executive order on secrecy
which stated that once a document had been declassified, it cannot be reclassified.
As a result, President Reagan changed the executive order to indicate that once a
document has been declassified it can be reclassified. However, because the order
could not be applied retroactively, the new executive order could not be applied to
Mr. Bamford and the information was subsequently published in The Puzzle
Palace.
151. During that period,
sources necessary to Mr. Bamford’s investigative journalism were much less willing to
communicate with him due to the likelihood that his communications were being intercepted by
the NSA. The NSA had previously placed another writer, David Kahn, on its watch
list, and intercepted his communications, as he
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was writing his history of cryptology, The
Codebreakers. According to the Senate Select Committee on Intelligence, the agency
also considered undertaking “clandestine service applications” against the author, which
apparently meant anything from physical surveillance to conducting a
“surreptitious entry” into Kahn’s New York home.
152. Mr. Bamford’s recent work
has again made it likely that his communications are being intercepted by
the NSA. For example, in the fall of 2001, Mr. Bamford received a book contract from
Doubleday Publishing Company to write A Pretext for War, which documents the
intelligence mistakes that led to the nation’s failure to prevent the 9/11 attacks and the Bush
administration’s subsequent misuse of intelligence to sell preemptive war to
the American people.
153. Since the fall of 2001,
Mr. Bamford has also written more than two dozen articles, reviews and opinion
pieces on intelligence, 9/11, and the wars in Iraq and Afghanistan. These include “Where Spying
Starts and Stops” (The New York Times, January 2006), “The Agency That Could Be
Big Brother” (The New York Times, December 2005), “The Labyrinthine Morass
of Spying in the Cold War” (The New York Times, July 2003), “This Spy For Rent”
(The New York Times, June 2004), “How To De-Centralize Intelligence” (The New York
Times, November 2002), “War of Secrets” (The New York Times, September 2005),
“Washington Bends The Rules” (The New York Times, September 2002), “A Former
CIA Cowboy and his Disillusioning Ride” (The New York Times, September 2002),
“We’re Watching Them” (The Washington Post, February 2005), “Sowing the
Whirlwind” (The Washington Post, February 2004), “A Look Over My Shoulder” (The Washington
Post, April 2003), “Shadow Warriors” (The Washington Post, December 2002),
“Strategic Thinking” (The Washington Post,
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September 2002), “The Wrong Man” (The
Washington Post, January 2002), “Intelligence Failures” (The Washington Post, June
2002), “Maintain CIA’s Independence” (USA Today, October 2002), “Untested
Administration Hawks Clamor for War” (USA Today, September 2002), “Bush Wrong to Use
Pretext as Excuse to Invade Iraq” (USA Today, August 2002), “Linguist Reserve Corp
Answers Terror Need” (USA Today, July 2002), “Secret Warriors: The Great Game” (The
Los Angeles Times, May 2004), “Secrets on High” (The Los Angeles Times, March
2003), “The Man Who Sold The War” (Rolling Stone, December 2005) and “Breeding
Terror: The Intelligence Community Analyzes a Counterproductive War” (The American
Conservative, March 2005). Mr. Bamford also is a contributing editor for Rolling
Stone and has served on the USA Today Board of Contributors.
154. Communicating with
individuals in Iraq, Afghanistan, and elsewhere in the Middle East via email and telephone
is a vital part of Mr. Bamford’s work as an author and journalist. Mr. Bamford’s
sources in the Middle East include people working for the United States military
and intelligence agencies, intelligence officials in other countries, intelligence experts,
and foreign journalists specializing in writing on intelligence.
155. Mr. Bamford’s email
communications include discussions of the NSA, Central Intelligence Agency, military
strategies related to the wars in Iraq and Afghanistan, and the 9/11 attacks and
other terrorist attacks. The people with whom Mr. Bamford has communicated, the locations
of people with whom he has communicated, and the content of his communications are
all likely to have triggered scrutiny by the NSA under the Program.
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156. Mr. Bamford also
frequently communicates by telephone and email with journalists in the Middle East, both
as part of his research and because he is often interviewed as an expert on U.S.
intelligence. For example, he has appeared several times on Al-Jazeera, the leading
television network in the Arab world.
157. As part of his research,
Mr. Bamford also frequently visits web sites that are likely to trigger NSA scrutiny.
For example, Mr. Bamford has researched web sites about terrorism, jihad, Osama bin
Laden, al Qaeda, Islamic fundamentalism, Saddam Hussein, weapons of mass
destruction, and signals intelligence. One web site, Jihad Unleashed, includes translations of
Osama bin Laden’s communications. Some of these web sites express support for
terrorism.
158. Mr. Bamford’s ability to
research and write about the NSA, intelligence, and the war on terror is
seriously compromised by the Program. Because the Program substantially increases the
likelihood that his communications are being intercepted by the NSA, Mr. Bamford is
less able to communicate freely and candidly in his international calls and emails. In
addition, because of the Program, Mr. Bamford believes that sources who have first-hand
knowledge about intelligence failures and abuses are less willing to engage in
communications with him.
Larry Diamond
159. Larry Diamond is a senior
fellow at the Hoover Institution, Stanford University, and founding coeditor of the
Journal of Democracy. He is also codirector of the International Forum for Democratic
Studies of the National Endowment for Democracy. At Stanford University, he is
professor by courtesy of political science and sociology and coordinates the democracy
program of the Center on Democracy,
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Development, and the Rule of Law. During
2002–03, he served as a consultant to the U.S. Agency for International Development
(USAID) and was a contributing author of its report Foreign Aid in the National
Interest. Currently he serves as a member of USAID's Advisory Committee on Voluntary Foreign
Aid. Professor Diamond has also advised and lectured to the World Bank, the
United Nations, the State Department, and other governmental and nongovernmental agencies
dealing with governance and development.
160. During the first three
months of 2004, Professor Diamond served as a senior adviser on governance to the
Coalition Provisional Authority in Baghdad. He is now lecturing and writing about the
challenges of post-conflict state building in Iraq, and the challenges of developing and
promoting democracy around the world, with a particular focus on the Middle East and
Africa. Professor Diamond has worked with a group of Europeans and Americans to
produce the Transatlantic Strategy for Democracy and Human Development in the Broader
Middle East, published in 2004 by the German Marshall Fund of the United States.
During 2004–5, he has been a member of the Council on Foreign Relations’ Independent
Task Force on United States Policy Toward Arab Reform.
161. Professor Diamond is the
author of numerous books, including Squandered Victory: The American
Occupation and the Bungled Effort to Bring Democracy to Iraq (Times Books, 2005).
His recent edited books include Islam and Democracy in the Middle East (with Marc
F. Plattner and Daniel Brumberg) and Assessing the Quality of Democracy (with
Leonardo Morlino).
162. Professor Diamond’s work
requires him to communicate by email, and occasionally by telephone, with advocates
of democracy in the Middle East, Asia, and
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Africa. For example, Professor Diamond
corresponds by email with Saad Eddin Ibrahim, a leading advocate of democratic reform
in Egypt, and with Professor Maye Kassem, a political scientist at the American
University in Cairo. Professor Diamond corresponds with Adel Abdellatif of the United
Nations Development Program in Beiruit. Professor Diamond also corresponds with advocates
for democratic reform in many other countries, including Iran, the Palestinian
Authority, Pakistan, China, the Philippines, Nigeria, Kenya, and Uganda.
163. Professor Diamond has a
well-founded belief that his communications are being intercepted by the Program.
164. Some of Professor
Diamond’s correspondence with individuals in the Middle East and Asia concerns political
and human rights issues that are extremely sensitive. For example, Professor Diamond
has corresponded with Sana Baloch, a Pakistani Senator, about human rights
issues in Baluchistan. Professor Diamond believes that Senator Baloch would not have
provided him with this information had he believed that communications with Professor
Diamond were monitored by the United States government. Professor Diamond believes
that the existence of the Program makes it less likely that individuals in Afghanistan,
Pakistan, Egypt, China, and elsewhere in the Middle East and Asia will provide him
with sensitive information over email or by telephone in the future.
165. Because Professor Diamond
is a well-known scholar of democratic reform, he is occasionally contacted
unsolicited by individuals who live under repressive governments and have complaints about
their governments’ policies. Professor Diamond believes that the Program makes it
substantially less likely that such individuals will
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contact him. Professor Diamond believes
that this is particularly true of individuals who live under repressive governments that
have close relations with the United States, such as Pakistan, Egypt, and Kazakhstan,
because these individuals will reasonably fear that their communications may ultimately be
provided by the United States to their own governments.
166. Professor Diamond’s
ability to advocate and advise on democratic reform in the Middle East and Asia
depends in part on the willingness of political dissidents to contact him, to consult
with him, and to provide him with information about their own governments’ policies.
Professor Diamond believes that the Program inhibits the exchange of information and ideas
among advocates of democratic reform and the victims of human rights abuses and
defenders of human rights, and thereby compromises his ability to study the progress of
democratic reform and support those in the Middle East and Asia who advocate change.
167. Additionally, Professor
Diamond is concerned about the implications of the program for academic freedom. He
periodically has undergraduate and graduate students who travel to the Middle East,
Asia, and Africa to conduct research on sensitive political questions and who need to be in
touch with him by email for advice and coordination while in the field. For
example, this past summer, one of his Stanford undergraduate advisees, Omar Shakir,
worked for him as a research assistant in Egypt interviewing opposition activists,
intellectuals, and advocates of democratic change. Shakir sent weekly reports back to
Professor Diamond and they communicated by email while he was in Egypt. Professor Diamond
believes the Program inhibits the conduct and coordination of overseas research and the
supervision of student research by impairing
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the ability to communicate freely and
responsibly with his students and assistants overseas, who often give their
interviewees pledges of strict confidentiality. Christopher Hitchens
168. Christopher Hitchens is a
reporter and author based in Washington, D.C. He is a prominent and controversial
commentator who is vocal in his support for the military interventions in Iraq and
Afghanistan. Mr. Hitchens writes frequently on the politics of the Middle East. Many of his
articles focus on understanding the role and influence of Islamic fundamentalism in
the region. He also probes the success of United States policy in assuaging the threat to
security posed by Muslim terrorists harbored in the Middle East and West Asia.
169. Mr. Hitchens’ reportage
and analysis appear in numerous publications. He has published in Harpers, The
Spectator, The Nation, New York Newsday, and Atlantic Monthly. He currently is a
frequent contributor to Slate and Vanity Fair. Mr. Hitchens writes a regularly featured
column for Slate called Fighting Words, which he used to voice his strong support for the
allied military actions in Iraq and Afghanistan. He has traveled throughout the Middle
East on behalf of Vanity Fair in order to write a series of articles describing the
political climate in various countries. Mr. Hitchens is also a best-selling author of several
books. In 2003, he published A Long Short War: The Postponed Liberation of Iraq, a
collection of essays analyzing arguments for and against the war in Iraq. In 2005, he contributed
an essay to Thomas Cushman’s compilation A Matter of Principle: Humanitarian
Arguments for War in Iraq.
170. Mr. Hitchens’ work
requires him to maintain frequent contact with sources in the Middle East and Western
Asia. Such communications were necessary for
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him to research his Vanity Fair articles
on political conditions in various Middle East states. These articles include “On the
Frontier of Apocalypse” on Pakistan (January 2002), “The Maverick Kingdom” on Qatar
(December 2002), “Saddam’s Long Good- Bye” on Kuwait (June 2003), “A Prayer for
Indonesia” (January 2004), “Afghanistan’s Dangerous Bet” (November 2004), and
“Iran’s Waiting Game” (July 2005). Mr. Hitchens’ upcoming book and continuing
journalism will involve contact with, and visits to, the Middle East and Western Asia.
171. As part of his work, Mr.
Hitchens regularly exchanges emails and telephone calls with individuals in Iraq,
Iran, Afghanistan, Pakistan, India, Indonesia, Qatar and Kuwait. In a typical week, Mr.
Hitchens hears from individuals in several of these countries. For example, Mr.
Hitchens has spoken with Dr. Masuda Jalal, the only woman who ran for president of
Afghanistan; Hossein Khomeini, a cleric whose grandfather overthrew the Iranian
monarchy in 1979; Ali Mohmmed Kamal, a TV marketing director for Al Jazeera; and
Sardar Sikander Hayat Khan, the prime minister of Pakistani Kashmir. Mr. Hitchens’
communications to the Middle East and Western Asia include contacting journalists of a
variety of nationalities and individuals in the United States military and diplomatic corps. He
also contacts those who are actively hostile to the United States military intervention
in Iraq and Afghanistan and the United States more generally. Because of the subject
matter of his reporting, many of Mr. Hitchens’ communications involve discussions of
Islamic fundamentalism, terrorism, jihad, Osama bin Laden, al Qaeda, and Saddam Hussein.
172. Since well before 2001,
but more regularly and frequently since then, Mr. Hitchens’ work has required him to
travel to the Middle East and Western Asia.
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Since 2001, the countries he has visited
include Iraq, Iran, Afghanistan, Pakistan, India, Indonesia, Qatar and Kuwait. Travel is an
important element of Mr. Hitchens’ work, as his reporting offers detailed, first-hand
accounts of conditions in countries few Westerners have an opportunity to visit.
For instance, Mr. Hitchens traveled throughout Iran to prepare “Iran’s Waiting Game”
(July 2005 Vanity Fair). He visited Tehran, Qom, and Mashhad to gain a sense of life under
Iran’s theocratic government. In researching “Afghanistan’s Dangerous Bet” (November
2004 Vanity Fair), Mr. Hitchens ventured from Kabul to the provincial capital of
Herat to witness the run-up to Afghanistan’s first democratic elections from different
vantage points. Mr. Hitchens visited Qatar to report on its relatively free society, a report
in which he devoted much attention to Qatar-based media outlet Al Jazeera (The Maverick
Kingdom, December 2002 Vanity Fair). While traveling, Mr. Hitchens communicates
regularly by telephone and email with colleagues, editors, and sources in the United States.
173. Because of the nature of
his communications with people in the Middle East, the identities of those with whom
he communicates, and the subject matter of his online research, Mr. Hitchens has a
well-founded belief that his communications are being intercepted by the NSA under the
Program. Mr. Hitchens believes that free and open communication with his sources is an
essential element of his work as a journalist. Given the sensitive nature of his work,
Mr. Hitchens must assure some of his sources that their communications are kept in strict
confidentiality. The Program undermines Mr. Hitchens’ ability to make that assurance.
As a result, individuals are less forthcoming in their conversations with him, and may cut
off communications completely. In addition, the likelihood that Mr. Hitchens’
international communications are being intercepted by
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the NSA under the spying program impinges
his own ability to communicate freely and candidly with his sources and others, to
the detriment of his effectiveness as an investigative journalist.
Tara
McKelvey
174. Plaintiff Tara McKelvey is
a senior editor at The American Prospect and a contributing editor to Marie
Claire. Her articles have appeared in those two magazines as well as in The Nation, USA
Today, Chicago Tribune, and The New York Times.
175. Ms. McKelvey has written
extensively about the Middle East, including articles about Iraqi detainees held in
United States custody, about women’s issues in Iraq, and about the United States military in
Iraq. She is working on a book about U.S. legal efforts to fight torture and is editing
an upcoming anthology about women and torture.
176. Communicating with
individuals in Iraq, Jordan, and Syria via telephone and email is a vital part of
Ms. McKelvey’s work as a journalist. Since October 2004, Ms. McKelvey regularly
emails people in Iraq and Jordan as part of her research. For example, she made frequent
calls to individuals in Iraq, Jordan, and Syria during November and December 2004 and
January, November, and December 2005. Ms. McKelvey’s sources in the Middle East
include individuals working for the United States military, Iraqi soldiers, nongovernmental
agencies, bankers, school administrators, journalists, activists, human-rights
workers, and others.
177. Among Ms. McKelvey’s many
sources in the Middle East are individuals she believes are likely to
have been the targets of United States government surveillance because they have been
arrested or investigated by United States or coalition
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forces, have been suspected of aiding
insurgents, have ties to the former Iraqi regime, or are critical of the United States
presence in Iraq.
178. For example, in December
2004, for an article for The American Prospect, Ms. McKelvey interviewed by
telephone Khadeja Yassen in Baghdad. Yassen was a ranking member of the Baath Party
and is the sister of former vice president Taha Yassin Ramadan, who in turn was included
in the United States military’s playing card deck of the 55 most wanted Iraqis. Yassen
had her house raided by United States forces in 2003 and was thereafter arrested.
179. Also in December 2004, for
an article for The American Prospect, Ms. McKelvey interviewed Saja, an engineer in
her thirties, by telephone at her home in Damascus. Ms. McKelvey also emailed her.
Saja is, according to an American spokesman for coalition forces in Iraq,
believed to be a former mistress of Saddam Hussein.
180. As part of her
journalistic research, Ms. McKelvey visits numerous websites hosted in the Middle East that
include aggressive anti-American propaganda.
181. Because of her
journalistic contacts with individuals in Iraq who have been arrested or investigated by United
States or coalition forces, who have been suspected of aiding insurgents, who have
ties to the former Iraqi regime, or who are critical of the United States presence in
Iraq, Ms. McKelvey has a well-founded belief that her international communications are
being intercepted by the NSA under the Program.
182. The Program substantially
impairs Ms. McKelvey’s ability to communicate openly with sources in the
Middle East that are essential to her work as a
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journalist. Many of Ms. McKelvey’s most
important sources have spoken to her in the past only with great trepidation: they
fear that other Iraqis will kill them for speaking with an American and, at the same time,
they fear being arrested (in some cases, rearrested) by United States or coalition forces who
suspect them of being involved in insurgent activities. Ms. McKelvey
believes that the Program is diminishing the willingness of her sources to communicate
with her and may deter them from
communicating with her altogether for fear that their communications
may be intercepted.
Barnett R. Rubin
183. Barnett R. Rubin is
Director of Studies and Senior Fellow at the New York University Center on International
Cooperation (“CIC”). The CIC promotes policy research and international consultations
on multilateral responses to transnational problems. He is the chair of the Conflict
Prevention and Peace Forum (CPPF), a program of the Social Science Research Council in
New York, that provides the United Nations with confidential consultations with
experts on issues related to conflict and peace around the world. He is also a member of the
board of Gulestan Ariana Ltd., a commercial company registered in Afghanistan to
manufacture essential oils, hydrosols, and related proeducts, with offices and operations in
Kabul and Jalalabad. Previously Professor Rubin was the Director of the Center for
Preventive Action of the Council on Foreign Relations, of which he is now an advisory
board member. He was a member of the UN delegation to the UN Talks on Afghanistan
in Bonn, Germany, in November-December 2001. Professor Rubin advised the United
Nations in Afghanistan during the process of drafting the constitution of the Islamic
Republic of Afghanistan in 2003. Professor Rubin
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is a member of the advisory board of the
Central Eurasia Program of the Open Society Institute, overseeing programs in the
Caucasus, Central Asia, Afghanistan, Iran, and Pakistan.
184. Professor Rubin’s work and
research concerns conflict prevention and peace building in Afghanistan and the
surrounding region. Professor Rubin is regularly consulted as an expert on Afghanistan,
Central Asia, and South Asia and regularly works in collaboration with officials of
Afghanistan, the United Nations, the United States, and other governments and international
organizations on development and institutionbuilding projects. In his work with CPPF he works
on issues related to conflict
prevention in Central Asia and travels to the area. As a board member
of Gulestan, he communicates
with individuals in Kabul and Jalalabad, and travels to inspect the company’s operations in Jalalabad and
elsewhere in Nangarhar province, including some areas close to Tora Bora. He has authored
and edited numerous books and articles about Afghanistan and conflict prevention,
including The Fragmentation of Afghanistan (New Haven: Yale University Press, 2002
(second edition), 1995 (first edition)), The Search for Peace in Afghanistan (New Haven: Yale
University Press, 1995), and Blood on the Doorstep: The Politics of Preventing
Violent Conflict (New York: The Century Foundation and the Council on Foreign
Relations, 2002).
185. Professor Rubin
communicates by email and telephone with individuals in Afghanistan almost every day.
Professor Rubin frequently communicates by telephone with Afghan government officials in
Kabul. In connection with Gulestan’s activities he speaks to individuals in Jalalabad. In
connection with his work for CPPF and OSI, Professor Rubin communicates with
individuals in Central Asia. Professor Rubin
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communicates regularly by telephone with
Amrullah Saleh, the Director of the National Directorate of Security (Afghanistan’s
intelligence agency); with Ishaq Nadiri, President Hamid Karzai’s Minister Advisor of
Economic Affairs; with Adib Farhadi, Director of the Afghanistan Reconstruction and
Development Services; with Ali Ahmad Jalali, when he was Minister of the Interior of
Afghanistan; with Dr. Ashraf Ghani, Chancellor of Kabul University and former Minister of
Finance of Afghanistan; with engineer Mohammad Eshaq, former director of Afghan
Radio and Television; and with many others.
186. Professor Rubin also
communicates frequently by telephone with United Nations officials in Kabul,
including Lakhdar Brahimi, when he was the United Nations Special Representative of the
Secretary General for Afghanistan (SRSG); Jean Arnault, the current SRSG; Ameerah Haq,
Deputy SRSG; Chris Alexander, Deputy SRSG; and Eckart Schwieck, Mr. Arnault’s
Executive Assistant.
187. In connection with his
work on Afghanistan and South Asia, Rubin frequently communicates by email and
telephone with colleagues such as Ahmed Rashid, a journalist and author residing in
Lahore, Pakistan. He frequently communicated in the past several years with a Pakistani
journalist named Abubaker Saddique, who worked for the International Crisis Group, the
Integrated Regional Information Network (Central Asia) of the United Nations and who also
worked for CIC as a consultant. These communications concerned particularly
sensitive matters, such as the Afghan-Pakistani border areas, a project on which they are
now working together.
188. In connection with his
work for CPPF and OSI, Professor Rubin has traveled to Tajikistan and other Central
Asian countries and engages in email and
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telephone communications with journalists
in the area as well as with OSI staff, such as Zuhra Halimova, director of the OSI
office in Dushanbe, Tajikistan.
189. In connection with his
work, Professor Rubin also frequently communicates with Afghan government
officials and others by email. For example, between August 2005 and the present,
Professor Rubin has exchanged numerous emails with Afghan government officials who are
drafting the Afghan National Development Strategy, on which Professor Rubin works
as an advisor. Professor Rubin has also communicated by email with Amrullah
Saleh, the Director of the Afghan intelligence agency. On occasion, Professor Rubin has
also exchanged emails with individuals, including government officials, in Iran.
These have included former deputy foreign minister Abbas Maleki, editor of the
Hamshahri newspaper and director of the Caspian Studies Institute; and Dr. Sayed Kazem
Sajjadpour, former director of the Institute for Political and International Studies; and
Kian Tadjbakhsh, Senior Research Fellow, Cultural Research Bureau, Tehran. Rubin
traveled to Tehran for a conference in December 2003, and in conjunction with
that trip made numerous telephone calls and emails.
190. Because of the nature of
Professor Rubin’s communications, and the identities and locations of those with
whom he communicates, Professor Rubin has a well-founded belief that his
communications are being intercepted by the NSA under the Program.
191. Professor Rubin believes
that free and open communication with individuals in Afghanistan and elsewhere
in the Middle East and Asia is essential to his work as a scholar. A large part of
Professor Rubin’s work involves exchanging ideas and
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information with people in Afghanistan and
elsewhere in the Middle East and Asia. The ideas are sometimes controversial and the
information is sometimes sensitive. Professor Rubin believes that the Program inhibits
the free exchange of controversial ideas and sensitive information and thereby
compromises his ability to engage in scholarship and to work collaboratively with individuals in
Afghanistan and elsewhere in the Middle East and Asia.
CAUSES OF
ACTION
192. The Program violates
plaintiffs’ free speech and associational rights guaranteed by the First Amendment.
193. The Program violates
plaintiffs’ privacy rights guaranteed by the Fourth Amendment.
194. The Program violates the
principle of separation of powers because it was authorized by President Bush in
excess of his Executive authority under Article II of the United States Constitution and is
contrary to limits imposed by Congress.
195. The Program violates the
Administrative Procedures Act because the NSA’s actions under the Program exceed
statutory authority and limitations imposed by Congress through FISA and Title III; are
not otherwise in accordance with law; are contrary to constitutional right; and are
taken without observance of procedures required by law.
PRAYER
FOR RELIEF
WHEREFORE
plaintiffs respectfully requests that the Court:
1. Declare that the Program is
unconstitutional under the First and Fourth Amendments;
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2. Declare that the Program violates the
principle of separation of
powers;
2. Declare that the Program violates the
Administrative Procedures Act;
3. Permanently enjoin defendants from
utilizing the Program;
4. Award Plaintiff fees and costs pursuant
to 28 U.S.C. § 2412;
5. Grant such other and further relief as
the Court deems just and proper.
Respectfully submitted,
ANN BEESON
Attorney
of Record
JAMEEL JAFFER
MELISSA GOODMAN (admission pending)
CATHERINE CRUMP (admission pending)
National Legal
Department
American Civil
Liberties Union Foundation
125 Broad Street, 18th
Floor
New York, NY 10004-2400
(212) 549-2500
MICHAEL J. STEINBERG
KARY L. MOSS
American Civil
Liberties Union Fund of Michigan
60 West Hancock Street
Detroit, MI 48201-1343
(313) 578-6814
January 17, 2006
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