Also see:     
AOL/Microsoft-Hotmail Preventing Delivery of Truthout Communications    [

    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.