[DEBATE] : Al-Haramain Islamic Foundation vs. Blair?
Riaz K. Tayob
riazt at iafrica.com
Sat Oct 20 22:14:40 BST 2007
Al-Haramain Islamic Foundation vs. Blair?
By Jon Eisenberg
t r u t h o u t | Perspective
Saturday 20 October 2007
Is it possible a foreign government - perhaps the United Kingdom -
has colluded with the Bush administration in conducting warrantless
electronic surveillance of American citizens?
I am one of the plaintiffs' attorneys in Al-Haramain Islamic
Foundation, Inc. v. Bush, which challenges the legality of the
president's warrantless surveillance program as a violation of the
Foreign Intelligence Surveillance Act of 1978 (FISA). The Al-Haramain
case is unique among the various lawsuits challenging the program in
that we alone have seen proof - a top-secret document the government
accidentally gave our clients in prior legal proceedings - that our
clients were victims of the program. The Ninth Circuit Court of Appeals
will soon decide whether we will be permitted to use the document, or
our memories of it, to establish our clients' standing to sue and
thereby obtain adjudication of an important constitutional issue:
whether the president may disregard an act of Congress in the name of
In one of the government lawyers' Ninth Circuit briefs, they insist
the document doesn't necessarily prove unlawful surveillance of our
clients because there are several possible factual scenarios for the
surveillance that would not be unlawful and that we cannot disprove. One
of their suggested scenarios is this: "Alternatively, a foreign
government that independently conducted its own surveillance of relevant
communications could provide the United States with information from
This puzzled me when I first saw the brief a few months ago. Were
the government lawyers suggesting that the president's warrantless
surveillance program might have been legal because a foreign government
was doing the actual surveillance as our proxy? Perhaps. But when I
initially read that puzzling sentence, I had no reason to suspect that
it was anything other than purely hypothetical.
Now I do, having just read "Body of Secrets" by James Bamford, a
book about the National Security Agency (NSA). Bamford describes an
intelligence-sharing arrangement called the "UKUSA Communications
Intelligence Agreement" between the US and the United Kingdom - going
back to 1946 and later joined by other countries - under which the NSA,
its British counterpart, and other foreign spy agencies conduct
electronic surveillance on each other's behalf and then exchange the
Could this be what the government's Al-Haramain brief was
suggesting - that a foreign agency surveilled our clients on the NSA's
behalf under something like the UKUSA agreement and then gave the NSA
the fruits of the surveillance? Is it possible the Bush administration
was having, say, the British do the dirty work of the so-called
"Terrorist Surveillance Program," conducting warrantless electronic
surveillance for the NSA on the theory that the surveillance would not
violate FISA if done by a foreign government?
If that's what happened, they were wrong to think there was no FISA
violation. FISA makes it unlawful for anyone, including a foreign
government, to conduct certain surveillance of Americans "under color of
law," which generally means to be acting under State authority. The
Supreme Court has held that anyone who participates in "joint activity"
or has a "symbiotic" relationship with the State is acting under color
of law. That means if any foreigners conducted surveillance prohibited
by FISA and did it at our government's behest under an
intelligence-sharing arrangement, they were acting under color of law
and thus in violation of FISA.
FISA also makes it unlawful for anyone to use or disclose the
fruits of someone else's FISA violation. That means if a foreign
government, under an intelligence-sharing arrangement like the UKUSA
agreement, gave the fruits of a FISA violation to the NSA, and the NSA
then used the information or disclosed it to other US government
agencies, that too was a FISA violation - by the NSA.
Lest anyone be tempted to accuse me of being a wild-eyed conspiracy
theorist, keep in mind that the factual elements of this scenario are
set forth in a legal brief filed by the United States government. It
wasn't my idea. I'm just wondering where it might lead.
Senate and House committees have been probing the origins and
purported legal justifications for the president's warrantless
surveillance program. I am not aware that any member of Congress who
sits on one of those committees has yet asked whether a foreign
government has acted as a proxy for the program, and whether someone in
the Bush administration concocted a wrongheaded notion that a proxy
scenario would evade FISA. Perhaps someone should start asking.
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