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Thursday's ruling in Michigan against the government's telephone and
internet surveillance program is only the latest in a series of
blows to the Bush administration's anti-terrorism policies, and its
overarching assertion that the executive branch should have wartime
powers that rise above the law and congressional oversight.
In June, for example, the Supreme Court ruled that special military
commissions set up to try detainees at the Guantanamo Bay Naval Base
in Cuba violate the Geneva Convention and other laws -- although the
court left the door open to proceed with the military trials if the
administration gets special permission from Congress.
The government has faced a number of other legal challenges to its
anti-terrorism policies since September 2001, not all of which it
has lost. Here's a roundup of the major challenges so far:
Issue: Extraordinary Rendition -- the practice of abducting foreign
nationals and transporting them to clandestine prisons for
interrogation outside of judicial process.
Case: El-Masri v. Tenet (.pdf), in the U.S. District Court for the
Eastern District of Virginia.
Details: Last December the ACLU filed a lawsuit on behalf of Khaled
El-Masri against former CIA director George Tenet. El-Masri, a
German citizen, says that the CIA abducted him while he was on
vacation in Macedonia, and then beat, drugged and transported him to
a secret prison in Afghanistan where he was subjected to "coercive
interrogation." Months later, the CIA released him without ever
charging him with a crime.
El-Masri isn't the only victim of extraordinary rendition. Egyptian
cleric Abu Omar was reportedly abducted by CIA agents in Milan in
2003, and Syrian-born Canadian citizen Maher Arar was seized in 2002
by authorities in New York while in transit from a vacation to
Tunisia. He was taken to a prison in Syria.
Status: The U.S. government invoked the state secrets privilege.
In May, the U.S. District Court dismissed the case on state secrets
grounds, although the judge acknowledged in his opinion that "if
El-Masri's allegations are true or essentially true, then all
fair-minded people ... must also agree that El-Masri has suffered
injuries as a result of our country's mistake and deserves a
remedy." The ACLU is appealing the decision.
Case: Ali et al., v. Rumsfeld filed in March 2005 in U.S.
District Court in the Northern District of Illinois.
Details: Filed against Secretary of Defense Donald Rumsfeld on
behalf of eight men who say that, while imprisoned in Iraq and
Afghanistan, they were tortured and abused by U.S. forces operating
on Rumsfeld's command and in violation of U.S. and international
The men say they were severely and repeatedly beaten, cut with
knives, sexually humiliated and assaulted and were subject to death
threats, although none of them was ever charged with a crime, and
all were later released. According to the complaint, Rumsfeld is
the focus of the suit because he personally approved illegal
interrogation techniques in December 2002. The ACLU filed similar
complaints against three other military officers in federal courts
in Connecticut, South Carolina and Texas.
Status: The government has filed a motion to dismiss the case
stating that Rumsfeld should be entitled to qualified immunity
because, among other reasons, "the law did not clearly establish at
the time in question that non-resident aliens detained at military
facilities in Afghanistan and Iraq were entitled to constitutional
Issue: Illegal Detention -- Critics maintain that military
commissions set up by the Bush administration to try Guantanamo
detainees is illegal.
Case: Hamdan v. Rumsfeld, et al, filed in U.S. District Court for
the District of Columbia in April 2004 and heard by the Supreme
Court in March of this year.
Details: Salim Hamdan, a former aid and driver for Osama bin Laden,
was arrested in Afghanistan and sent to Guantanamo under charges of
conspiracy to commit terrorism. The government, asserting executive
power, set up special commissions through a military order signed in
November 2001 to put Hamdan and other detainees on trial.
Status: The case went to the Supreme Court and in June the court
ruled 5-3 against the government, finding that such military
commissions are illegal under the Geneva Convention and the Uniform
Code of Military Justice. The Court left the door open for the
special commissions to proceed, however, if they're authorized by
Congress or operate under established rules for military courts.
Issue: Internet Surveillance -- The Electronic Frontier Foundation
contends that the government is engaging in warrantless surveillance
of U.S. internet traffic, in cooperation with at least one major
telecom company, AT&T.
Case: Hepting v AT&T et al filed in January 2006 in
District Court for the Northern District of California.
Details: The EFF filed this class-action lawsuit on behalf of AT&T
customers asserting that the telecommunications company helped the
NSA monitor internet communications, including surfing, e-mail and
voice-over IP phone calls. The government intervened in the case,
claiming the state secrets privilege and moving for dismissal. AT&T
has asserted it should be immune from liability because, if it did
anything, it was simply acting on the government's orders.
Status: A judge ruled that the case can go forward but has stayed
discovery pending an appeal by the government and AT&T. A panel
recently ruled that all of the cases against telecoms on the issue
of NSA surveillance will be combined and tried under Hepting's judge
in the California court. Internet surveillance is also addressed in
ACLU v. NSA, below.
Issue: Wiretapping -- listening to the content of phone calls
between parties in the United States and parties outside U.S.
borders without court authorization.
Case: ACLU v. NSA filed in January 2006 in U.S. District
Court in the Eastern District of Michigan.
Details: The ACLU filed the suit on behalf of a group of
journalists, scholars, attorneys and national nonprofit
organizations after The New York Times exposed the wiretapping
program in a December 2005 story. The plaintiffs contend that if
the government was engaging in widespread wiretapping then it's
possible that their phone and e-mail communications with clients and
sources in the Middle East were being intercepted by the NSA in
violation of the First and Fourth Amendments.
Status: The court ruled that the wiretapping is unconstitutional and
that the government must halt the program -- including any internet
surveillance. The government is expected to appeal the decision and
obtain a stay until that appeal is heard.
Issue: Domestic Call Records -- The ACLU and other groups contend
that at least some phone companies are providing the NSA with vast
troves of domestic telephone call records for U.S. citizens without
Case: Terkel et al. v. AT&T Inc., filed May 2006 in U.S. District
Court in the Northern District of Illinois.
Details: In May, USA Today reported that the NSA had obtained call
records from AT&T, BellSouth and Verizon. AT&T was the only company
of the three that didn't deny the allegation, and USA Today later
backed away from its claims about the other two. The ACLU filed its
class-action lawsuit against A&T on behalf of Illinois customers for
participating in the alleged program.
Status: In July, the court accepted the government's argument that
the case could not proceed without revealing state secrets, and
dismissed the lawsuit.
In an effort to combat some of the challenges to its authorities,
the administration has lashed out at critics and whistleblowers
President Bush and Vice President Cheney denounced The New York
Times after it published a story in June about the government's
surveillance of financial transactions. Congressman Peter King
(R-New York), chairman of the House Homeland Security Committee,
also denounced the article and called on Attorney General Alberto
Gonzales to prosecute the reporters and editors responsible for the
Although the Justice Department has not initiated any action against
the Times yet, it has impaneled a grand jury to try and track down
those who leaked information about classified projects to reporters,
with the possible intent of prosecuting such whistleblowers under
the Espionage Act.
Last month the grand jury subpoenaed former NSA analyst Russ Tice
who spoke with The New York Times before it published its December
story. Tice has admitted to discussing the issue of warrantless
surveillance with the Times, although it's unclear whether he was
the source for the specific information that the paper published.
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