The Bush Power-Grab Scorecard

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    - Kim Zetter

    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.

    Issue: Torture

    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
    a warrant.

    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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