ABA TAKES ON SURVEILLANCE [American Bar Association]

The ABA is expected to weigh in on the hot-button issue of domestic surveillance, an issue stirring heated debate throughout the nation.

ABA President Michael S. Greco assembled the new task force of lawyers, all with significant intelligence experience, in mid-January. The task force will examine the legal issues surrounding the federal government’s surveillance of Americans inside the U.S.

Greco has asked the new group to prepare a preliminary report with recommendations for the House of Delegates for the ABA Midyear Meeting in Chicago on Feb. 13.

"Recent revelations about the National Security Agency’s domestic surveillance program remind us that we must continually and vigilantly protect our Constitution and defend the rule of law," Greco said in his letter appointing the new Task Force on Domestic Surveillance in the Fight Against Terrorism.

Greco says he and the task force are approaching the domestic surveillance issue “with an open mind.” But he says the issue is so important to Americans in general that the ABA has to at least consider the matter as soon as possible.

When The New York Times revealed the National Security Agency’s domestic spying program late last year, Greco says, “so many people throughout the country expressed shock and incredulity that this was going on.”

“And when the president stated that he has the power to do this and so many legal scholars around the country disagreed with that,” Greco says, it became clear to him that the ABA has an “obligation to educate the American people what the issues are.”

If the task force report and recommendation lead the ABA to take a policy position on the issue, Greco says it will then be the ABA’s obligation to protect Americans and the Constitution.

“It’s really the role of lawyers in our third branch, the judicial branch, to ensure that the separation of powers doctrine which has served our democracy well for two centuries continues to be strong,” Greco says.

Chair of the task force is Miami lawyer Neal R. Sonnett, who also heads the association’s Task Force on Treatment of Enemy Combatants.

The task force is a who’s who of the intelligence bar and includes former FBI Director William S. Sessions; Stephen A. Saltzburg, National Institute of Military Justice general counsel; and Suzanne E. Spaulding, a former CIA assistant general counsel. Spaulding has served as executive director of two congressional commissions: the National Commission on Terrorism and the Commission to Assess the Organization of the Federal Government to Combat the Proliferation of Weapons of Mass Destruction.

Advising the task force are Harold Hongju Koh, dean of Yale Law School, and Elizabeth Rindskopf Parker, dean of the McGeorge School of Law at the University of the Pacific in Sacramento, Calif. Parker’s government service includes stints as general counsel for the NSA and CIA and as legal adviser for the U.S. State Department.

Sonnett, a former federal prosecutor now in private practice in Miami, is the ABA’s go-to person of late to help the bar navigate weighty legal policies involving war powers, executive authority and civil rights.

In 2002, Sonnett was chosen to chair the Task Force on Treatment of Enemy Combatants. Later, then-president Dennis W. Archer chose Sonnett to represent the ABA as an observer during military tribunals held at the U.S. military base at Guantanamo Bay, Cuba. Sonnett, who attended preliminary hearings in 2004, expects to observe tribunal hearings in March and issue a report not long after.

The ABA House of Delegates has adopted two task force resolutions. One calls for enemy combatants to have access to judicial review and legal representation. Another says civilian defense counsel representing enemy combatants before military commissions should have adequate opportunities to provide "zealous and effective assistance."

In his current role, Sonnett and the task force will work quickly to review legal and constitutional issues surrounding the NSA’s domestic surveillance program, which includes warrantless surveillance of Americans suspected of communicating with individuals associated with terrorist groups.

Specifically, Sonnett says, the task force will examine whether NSA activities complied with the Foreign Intelligence Surveillance Act and the secret court process that FISA established to provide a measure of judicial oversight. In addition to compliance issues, Sonnett says the task force will look at whether Congress’ authorization of use of military force by President Bush "justified going around the law."

"We’re examining all the arguments made by the administration to justify the program," Sonnett says.

Somehow I missed that speech by Bush.

Me too.

CHICAGO, Feb.10, 2006 - According to a poll commissioned by the American Bar Association and released today, 52 percent of respondents said that in the fight against terrorism, the President of the United States alone cannot suspend constitutional freedoms, with an additional 25 percent saying he must obtain authorization by a court of law or Congress. Thus 77 percent of Americans express deep reservations about the president's secret surveillance program.
The telephone poll conducted by Harris Interactive® over the past weekend found that only 18 percent of respondents believe the president can suspend constitutional freedoms "anytime the President thinks it is necessary to protect the country." ...
In a separate question, 45 percent said that in the fight against terrorism the government would never be justified in eavesdropping on their own personal communications without approval by a court or Congress.
When presented with specific reasons that might justify monitoring personal communications, 22 percent said it would be justified by an anonymous tip that they may be helping to plan a terrorist attack in the U.S.; 21 percent said it would be justified if someone suspected they may be sending money to a terrorist organization, and eight percent said it would be justified if the person was a member or supporter of an organization which has publicly criticized the President. Respondents were allowed to choose more than one reason.
Additionally, Greco released a policy proposal that is to be presented to the ABA House of Delegates on Monday, when it convenes during the ABA's 2006 Midyear Meeting in Chicago. The report will not constitute ABA policy until it is adopted by the House of Delegates.
The report was submitted by a Task Force on Domestic Surveillance created by Greco in January to respond to revelations about NSA domestic surveillance. A roster of task force members, which includes a former Director of the FBI, former General Counsel of the CIA and former Counsel of the National Security Agency, is available at http://www.abanet.org/op/domsurv.
The proposal includes six clauses, which would:

Call on the President to abide by our constitutional system of checks and balances and respect the roles of Congress and the judiciary in protecting national security consistent with the Constitution
Oppose any further electronic surveillance in U.S. for foreign intelligence purposes that does not comply with the Foreign Intelligence Surveillance Act and urge the President, if he believes FISA is inadequate, to seek amendment or new legislation
Urge Congress to affirm that the Authorization for Use of Military Force adopted by Congress in September 2001 did not provide an exception to FISA, saying such an exception must be explicit
Urge Congress to conduct a comprehensive, thorough investigation of the National Security Agency's domestic surveillance program
Urge Congress to assure proceedings of that investigation are open to public
Urge Congress to review and make recommendations regarding intelligence oversight process The public opinion poll results were produced in a nationwide poll of 1,045 U.S. adults aged 18 or over surveyed by telephone between Feb. 3 and 6, 2006, by Harris Interactive®. In theory, with probability samples of this size, one could say with 95 percent certainty that the results have a sampling error of plus or minus 3 percentage points of what they would be if the entire U.S. adult population had been polled with complete accuracy. Full poll results are available on the ABA Web site at http://www.abanews.org/docs/surveillancepoll06.pdf.

http://www.abanews.org/releases/news021006.html

The Federalist Society will be publishing a special, separate issue of BarWatch on Thursday regarding this important and controversial issue.

It just arrived in my email. This isn't the whole thing, but gives a good flavor for the value of full transparency ;-)

Over the past 72 hours, the American Bar Association has received much press attention for a Task Force it organized on the subject of terrorist surveillance. The Task Force, which just issued a report highly critical of the Bush Administration, is self-described as bipartisan and is relying heavily on an opinion poll that the ABA undertook on surveillance issues. ABA President Michael Greco asked President George W. Bush to consider the findings of this commission, which were adopted by the ABA House of Delegates on Monday and recommended a Congressional investigation into the President's activities.
At least three members of the seven-member Commission, including its Chairman, donated money to the Kerry Presidential Campaign. Several other members have long records of political giving and past involvement in many ABA initiatives that criticized the Bush Administration's policies. ...
Chairman Neal Sonnett has given over $23,000 in the past eight years to Democratic candidates and political action committees. According to the FEC, he gave $2,000 to John Kerry for President. He has also given money to Democratic Senators Bob Graham, Thomas Daschle, Maria Cantwell, and Bill Nelson, along with a number of Democratic House and Senate candidates. In 2005, he donated $1540 to Senator Joseph Biden.
Sonnett was previously involved in a controversy over whether or not an ABA resolution condemning any use of torture toward persons in custody by the U.S. government was politically motivated. Critics questioned the timing of the late-filed policy and the ABA's legal arguments in its accompanying report. The policy criticized the government for what it called "a widespread pattern of abusive detention methods...[Those abuses] feed terrorism by painting the United States as an arrogant nation above the law." The resolution was adopted during the ABA annual meeting that took place during the 2004 presidential campaign. Sonnett refuted the allegations of bias. According to an Associated Press account by Gina Holland, Sonnett declared, "I don't think it's the least bit political. We used strong language because it's deserved. We need to get the administration's attention and the public's attention."
Sonnett is currently representing former lobbyist Jack Abramoff.
Mark Agrast has donated over $4,000 to Democratic candidates; he has not donated any money to Republican candidates. He contributed to Representative Barney Frank, Senator Hillary Clinton, Senator Barack Obama, and the 2000 Al Gore and 2004 John Kerry Presidential Campaigns. He has also donated money to the Democratic National Committee.
Before the ABA Task Force was assembled, Agrast was an outspoken critic of the Administration's policies. He co-authored a December 26 Boston Herald editorial urging a Congressional investigation into the domestic surveillance program. On February 2, Agrast and his colleague Ken Gude authored a memo titled, "NSA Domestic Warrantless Wiretapping and the 'Trust Me' President." Agrast and Gude wrote, "The incompetence and lies of this administration have not only failed to enhance our national security, they have endangered it. The administration's campaign to defend the illegal spying program is nothing more than a smokescreen to cover up its failure to make real progress in protecting us from terrorists."
Professor Saltzburg donated $250 to Hillary Clinton's Senatorial Campaign in 2000.
[Judge] William B. Sessions donated $4,562 to the Holland & Knight Committee for Effective Government. He also donated $1,000 to Pete Sessions (his son) for Congress and $500 to Connie Morella's Congressional campaign in 2002. He also donated $250 to President George W. Bush's presidential campaign in 2000, and $1000 to the Republican National Committee in 2000. In August 2004, he donated $250 to Wespac, the political action committee for Democratic Presidential candidate Wesley Clark.
Judge Sessions was also a vocal critic of the president's domestic surveillance policy before the Task Force released its findings. On January 9, he co-signed a letter to Congressional leaders criticizing the domestic surveillance program. According to the letter, "Although the program's secrecy prevents us from being privy to all of its details, the Justice Department's defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law." The President should thus seek legislative action if he believes FISA was insufficient. The letter concluded, "One of the crucial features of a constitutional democracy is that it is always open to the President -- or anyone else -- to seek to change the law. But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable." (Incidentally, the Task Force cites this letter in its report as an analysis helpful in reaching its recommendations of this issue.)
Suzanne Spaulding contributed $1700 to John Kerry for President. She also contributed $250 to Evan Bayh's Senatorial Campaign in 1997.
In 2005, Spaulding articulated her concerns about the USA PATRIOT Act as part of the PATRIOT debates sponsored by the ABA's Standing Committee on Law and National Security. At a panel sponsored by the ABA, she stated, "I am delighted to contribute to the public debate over the USA PATRIOT Act, particularly since it was adopted so quickly with such limited debate at the time. In addition, I have grave concerns about the "lone wolf" provision, included in last year's intelligence reorganization bill, which allows for the government, for the first time, to use special intelligence powers against individuals who are acting entirely on their own, with no connection to any terrorists or foreign governments...It is critical that this "lone wolf" provision and key provisions of the USA PATRIOT Act are discussed fully before Congress decides later this year whether to renew or modify any of these powers."
The "lone wolf" amendment to the Foreign Intelligence Surveillance Act (FISA) permits the use of intelligence surveillance authority against individuals who have no known ties to any foreign government or international terrorists.
Spaulding also published a December 25, 2005 editorial in The Washington Post critical of the domestic surveillance policy. She dismissed the President's statement that members of Congress were briefed at least eight times about the program, asserting that those briefings were not sufficient notice. She wrote, "It is virtually impossible for individual members of Congress, particularly members of the minority party, to take any effective action if they have concerns about what they have heard in one of these briefings. It is not realistic to expect them, working alone, to sort through complex legal issues, conduct the kind of factual investigation required for true oversight and develop an appropriate legislative response." The Bush Administration, Spaulding asserted, should have sought changes in the law before circumventing FISA. President Bush exerted "unprecedented authority" in its domestic surveillance activities.
These [Harris Poll] results differ from a number of other recent polls on the subject.
A poll conducted January 4-8 by the Pew Research Center for the People and the Press, found that 48 percent of respondents thought that "monitoring Americans suspected of terrorist ties without court permission" was "generally right," and 47 percent thought it was "generally wrong."
A January 20-25 CBS/New York Times poll indicated that 53% of respondents approve of President George W. Bush authorizing the monitoring of U.S. phone calls in order to fight terrorism without first getting court warrants, but 46% do not. The poll, according to press reports, undersampled Republicans.
A January 12 Fox News poll of 900 Americans conducted by Opinion Dynamics Corporation found that, by a 58 percent to 36 percent margin, Americans think the president should have the power to authorize the NSA to monitor electronic communications of suspected terrorists without getting warrants, even if one end of the communication is in the United States. 6 in 10 respondents say the President should have the power to authorize the National Security Agency to do computer searches of large numbers of international phone calls coming into and out of the United States without getting warrants in order to identify terrorist activity. 60% of Democrats and 75% of Republicans would not personally mind having the NSA monitor their own personal international phone calls.
The Federalist Society is preparing a comprehensive report to look further into the legal findings of the Task Force.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.