Vol. 14, Nos. 24 & 25
Covering Cases Published in the Advance Sheets through June 18, 2007
Note: The Visitor's Edition of Punch & Jurists is an abbreviated version of the full Member's Edition which is available by subscription only. It does not contain all of the case summaries included in the Member's Edition or most of the links to the cases cited.

Landmark NSA Wiretapping Ruling Reversed

D.C. Circuit Holds Government Must Disclose Information on Guantanamo Bay Detainees

KPMG Tax Shelter Case Dismissed Due to "Outrageous and Shocking" Prosecutorial Misconduct

Fourth Amendment - Warrantless Searches of Email and IP Addresses Upheld

ACLU v. National Security Agency, No. 06-2095 (6th Cir. July 6, 2007) (Judge Batchelder)

In the first appeals court ruling on the Bush Administration's controversial electronic spying program, known as the Terrorist Surveillance Program (“TSP”), a divided panel from the Sixth Circuit vacated Judge Anna Diggs Taylor’s landmark ruling reported at ACLU v. National Security Agency, 438 F.Supp.2d 754 (E.D.Mich. Aug. 17, 2006) (P&J, 07/17/06) (“NSA I”); and held that the plaintiffs lacked standing to bring their claims in the Federal courts because they could not prove that they had been made targets of the TSP.

The NSA’s warrantless wiretapping program was set up secretly and without court approval by the Bush Administration shortly after the terrorist attacks on September 11, 2001. It allegedly targeted telephone and e-mail communications where one party in the monitored exchange was outside the U.S. and the NSA believed one of the parties was a terrorist tied to Al Qaeda - but the precise details of the program have always remained secret - even from Congress and courts.

In NSA I, Judge Taylor held that the TSP violated both the Constitution and established Federal law; and she enjoined the Government from eavesdropping without warrants. In her lengthy and memorable decision, Judge Taylor pointedly observed: “It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights.”

In reversing NSA I, the divided panel in the instant case did not address the merits of the plaintiffs’ claims that the TSP was unconstitutional. Rather, the 2-to-1 majority ruled on the very narrow ground that, because the program was conducted in secret, the plaintiffs could not prove that they had been subjected to any warrantless eavesdropping and thus lack "standing" to contest the legality of the NSA program, even though it clearly reaches targets within the United States.

The irony of the Court’s ruling is that it essentially rewards to Government for breaking the law in secret!

The Foreign Intelligence Surveillance Act of 1978 (which is codified at 50 U.S.C. §§ 1801 et seq.) ("FISA"), makes it illegal for the Government to spy on Americans in secret. However, under the theory of the instant case, the Government can easily bypass FISA and, with impunity, secretly spy on whoever it wants simply by asserting that its actions are protected by the State Secrets Privilege. In effect, because the State Secrets Privilege makes it impossible to find out whose conversations were listened to, so long as the Bush Administration breaks the FISA law in secret, it is immune from any judicial review and nobody can sue to remedy any constitutional violations. Wow!!

There were three separate opinions in this case. The controlling opinion written by Judge Julia Gibbons was only five pages long; and it was narrower in scope than either Judge Alice Batchelder’s 35-page lead opinion or Judge Ronald Gilman’s 24-page dissent.

The key to Judge Gibbons concurring opinion was that "[t]he Constitution 'requires the party who invokes the court's authority to show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant'." She then continued:

“The state secrets privilege operates as a bar to the admission of evidence to which the privilege attaches, and the plaintiff must proceed without the benefit of such evidence. Where the privilege prevents the plaintiff from producing sufficient evidence to establish his or her prima facie case, the court must dismiss the claim. . . . The court cannot avoid the state secrets privilege."

In her lead opinion, Judge Batchelder acknowledged that the case had provoked “a cascade of serious questions,” including whether the TSP violated FISA and the First and Fourth Amendments to the Constitution. But, she said, the Court’s ruling depended solely upon publicly available information about the NSA’s wiretapping program; and she concluded that "possibility remains that the NSA might not be intercepting, and might never actually intercept, any communication by any of the plaintiffs named in this lawsuit." Accordingly, she concluded:

“Because there is no evidence that any plaintiff's communications have ever been intercepted, and the state secrets privilege prevents discovery of such evidence, . . . there is no proof that interception would be detrimental to the plaintiffs' contacts, and the anticipated harm is neither imminent nor concrete -- it is hypothetical, conjectural, or speculative. Therefore, this harm cannot satisfy the 'injury in fact' requirement of standing.”

However, for the most part, Judge Batchelder’s opinion was caustically dismissive about the merits of the plaintiff’s claims. For example, while the lawsuit made six claims of illegal or unconstitutional action, Judge Batchelder stated that the plaintiffs actually "have only one claim, namely, breach of privacy, based on a purported violation of the Fourth Amendment and FISA -- i.e., the plaintiffs do not want the NSA listening to their phone calls or reading their emails. That is really all there is to it."

Judge Ronald Gilman started his sharp dissent with these words:

“My colleagues conclude that the plaintiffs have not established standing to bring their challenge to the Bush Administration's so-called Terrorist Surveillance Program (TSP). A fundamental disagreement exists between the two of them and myself on what is required to show standing and whether any of the plaintiffs have met that requirement. Because of that disagreement, I respectfully dissent. Moreover, I would affirm the judgment of the district court because I am persuaded that the TSP as originally implemented violated the Foreign Intelligence Surveillance Act of 1978 (FISA).”

In response to the Court’s decision, the ACLU (which acted as the lead plaintiff in this case) issued a press release which stated in part:

“We are deeply disappointed by today’s decision that insulates the Bush administration’s warrantless surveillance activities from judicial review and deprives Americans of any ability to challenge the illegal surveillance of their telephone calls and e-mails. As a result of today’s decision, the Bush administration has been left free to violate the Foreign Intelligence Surveillance Act, which Congress adopted almost 30 years ago to prevent the executive branch from engaging in precisely this kind of unchecked surveillance.”

Bismullah v. Gates, No. 06-1197 (D.C. Cir. July 20, 2007) (Judge Ginsburg)

In a significant setback to the Bush Administration’s policies regarding the detention of alleged terrorists at the military prison at Guantanamo Bay, Cuba, the D.C. Circuit has ruled that it will engage in a broad review of the Government’s evidence as it decides whether to uphold the military’s decisions regarding the continued detention of those prisoners; and it ordered the Government to turn over to the Court and to defense lawyers virtually all of its evidence supporting the classification of those detainees as “enemy combatants.”

The Court stressed that it will expect to examine all Government information bearing on each case where the detainee has challenged his detention, and not just the specific evidence that the government used in deciding to keep a detainee in military prison. Writing for the Court, Judge Ginsburg stated: "The court must be able to view the government information with the aid of counsel for both parties; a detainee's counsel who has seen only a subset of the government information [used as actual evidence] is in no position to aid the court."

Following the Supreme Court’s decision in Rasul v. Bush, 542 U.S. 466 (2004) (which held that the detainees at Guantanamo cannot be held indefinitely without any type of review), the military established a Combatant Status Review Tribunal (“CSRT”) to assess the case for continuing to hold each detainee. Then, in December 2005 the President signed into law the Detainee Treatment Act (DTA), Pub. L. No. 109-148, § 1005(e)(2)(A), 119 Stat. 2742-43, which vested in the D.C. Circuit the exclusive jurisdiction "to determine the validity of any final decision of a [CSRT] that an alien is properly detained as an enemy combatant."

From the outset, the procedures established by the CSRT have been contentious and controversial. (See, for example, "Reserve Officer Criticizes Process of Identifying ‘Enemy Combatants’ at Guantanamo," by William Glauberson, The New York Times, June 23, 2007; and "Court Asked to Limit Lawyers at Guantanamo," by William Glauberson, The New York Times, April 26, 2007.)

In the instant case, eight detainees being held at Guantanamo challenged their designation as “enemy combatants”; and the Court addressed various procedural motions filed by the parties regarding the scope and types of evidence that could be accessed in resolving the merits of those challenges.

The Government attempted to impose an extremely narrow definition on the type of information it was required to turn over to the detainees under the DTA; and it refused to turn over to counsel for the petitioners any classified information and "any information designated by the Government as protected information."

The Court rejected that narrow approach and concluded that all information “reasonably available” to the Government, plus any information offered by the detainee, is to be considered in its DTA review. The Court stressed that any meaningful review of the military tribunals would not be possible “without seeing all the evidence, any more than one can tell whether a fraction is more or less than half by looking only at the numerator and not the denominator.”

Among other things, the Court’s decision requires the government to turn over to the court all information used in its designation, but highly classified information can be withheld from the detainees and their attorneys. The proposed procedures also restrict the attorney-client relationship, limiting the number of visits and the substance of client communications; and allow the Government to monitor all legal mail for national security purposes.

Judge Judith Rogers concurred in the result, but she wrote a separate opinion to stress that intrusions on the attorney-client relationship are a serious issue and should be limited to the extent necessary for national security. She also pointed to some practical problems with the CSRT that call into question its effectiveness as a substitute for habeas corpus rights.

For an excellent commentary on the potential impact of this ruling, see "Wider inquiry into detainee confinement ordered," by Lyle Denniston as posted on the SCOTUSBlog on July 20, 2007.

U.S. v. Forrester, No. 05-50410 (9th Cir. July 6, 2007) (Judge Fisher)

In this case, the Ninth Circuit became the first Circuit to hold that government surveillance of e-mail and Internet activity does not violate the Fourth Amendment’s "reasonable expectation of privacy" - principally because the Court made the questionable analogy that such surveillance is “constitutionally indistinguishable from the use of a pen register.”

The panel also unanimously reversed one defendant’s sentence and conviction because it concluded that his waiver of his right to counsel was not knowing and intelligent since he was not informed of the charge against him, nor advised of the potential sentence faced if convicted, thus violating his rights under the Sixth Amendment as established under Faretta v. California, 422 U.S. 806 (1975).

Defendants Mark Forrester and Dennis Alba were charged with various offenses relating to the operation of a large Ecstasy-manufacturing laboratory; and they were both were convicted on all counts following a jury trial and they were both sentenced to 360 months in prison. On appeal, they raised two separate issues: a Fourth Amendment issue relating to the surveillance of Alba’s Internet activities; and a Sixth Amendment issue relating to Forrester’s waiver of his right to counsel.

Suppression of Internet Surveillance Records.

During its investigation of Alba, the Government applied for and received court permission to install a pen register analogue on Alba's computer. The only data obtained during the first phase of the investigation were the to/from addresses of Alba's e-mail messages, the IP addresses of the websites that he visited and the total volume of information sent to or from his account. Later, the Government also expanded its surveillance to include “imaging and keystroke monitoring techniques,” but for some strange and unexplained reason Alba did not challenge on appeal either the legality of those more intrusive surveillance techniques or the government's application to use them.

The information obtained from such surveillance activities was later used in various search warrant applications. Alba contended that the government’s surveillance of his e-mail and Internet activity violated the Fourth Amendment, fell outside the scope of the then-applicable federal pen register statute (18 U.S.C. § 3121-27), and therefore such evidence should be suppressed.

The Ninth Circuit rejected those claims, stating:

“We hold that the surveillance did not constitute a Fourth Amendment search and thus was not unconstitutional. We also hold that whether or not the computer surveillance was then covered by the then-applicable pen register statute – an issue that we do not decide – Alba is not entitled to the suppression of any evidence (let alone reversals of his convictions) as a consequence.”

The principal rationale behind the Court’s decision was that the surveillance techniques at issue in this case “are constitutionally indistinguishable from the use of a pen register” - a form of surveillance that the Supreme Court approved in Smith v. Maryland, 442 U.S. 735 (1979) and which the Court said does not even constitute a “search” for Fourth Amendment purposes. For example, the panel in the instant case dogmatically stated: “The government's surveillance of e-mail addresses . . . may be technologically sophisticated, but it is conceptually indistinguishable from government surveillance of physical mail.”

In reality, however, the surveillance techniques at issue give far more information than a pen register (which is a device that records numbers dialed from a phone) or an address on a letter. An Internet or IP address is content rich: it automatically gives access to the content of the communications present on web pages and, as such, it is a far cry from a phone number. While the analogy between pen registers and the more sophisticated surveillance techniques employed in this case may be easy to make, it is, nonetheless, a bad analogy because the scope and content of the information obtained is so radically different.

Because this is the first Circuit court opinion on Governmental surveillance of email and Internet activity, it will undoubtedly have an important precedential effect on future cases on the same topic. For an interesting commentary on this ruling, see “Dangerous,” by Prof. Shaun Martin, as posted on the California Appellate Report, on July 6, 2007.

Waiver of Right to Counsel.

Forrester moved for and was granted the right to self-representation prior to trial. At his initial self-representation motion hearing on October 23, 2002, and a later follow-up hearing on March 7, 2003, the district court carefully warned Forrester of the dangers of self-representation, but did not inform him of the charge against him and told him that he faced 10 years to life in prison - when in fact he actually faced a potential prison term of zero to 20 years.

On appeal the Ninth Circuit reviewed de novo whether Forrester’s waiver of the right to counsel at the October 23, 2002 hearing was knowing and intelligent if the district court failed to inform him of the charge against him and misinformed him about the potential sentence he faced.

Relying Faretta v. California, 422 U.S. 806 (1975), and its progeny, the Court concluded that Forrester’s waiver of counsel was not “knowing and intelligent,” because the trial court failed to insure he understood (1) the nature of the charges against him, (2) the possible penalties, and ( 3) the ‘dangers and disadvantages of self-representation’.” Accordingly, the Court reversed Forrester’s sentence and conviction.

In its decision, the Court went to great lengths emphasizing that the burden of establishing the legality of the waiver is on the government, noting that “courts indulge in every reasonable presumption against waiver.”
As a matter if interest, the Government argued that there was no Sixth Amendment violation because the district court had overstated the penalties he faced and therefore Forrester would have been more likely to waive his right to counsel had he known the actual, lower penalties he faced. In effect, the Government equated plausibility with inevitability. In rejecting that argument, the Court stated in part: “The first flaw in this argument -- which the government fails to support with any legal authority -- is that it is not clear how a defendant's decision to waive his right to counsel may be affected by incorrect information about his potential sentence.”


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