[DEBATE] : Al-Haramain Islamic Foundation vs. Blair?

[Riaz K. Tayob]

     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 
national security.

     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 
that surveillance."

     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 
acquired information.

     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.
http://www.truthout.org/docs_2006/102007E.shtml