Court Rejects 9/11 Lawsuit against Saudis

A federal court has dismissed a lawsuit by the powerhouse Philadelphia Cozen O'Connor law firm that sought money damages from Saudi Arabia's government and several senior Saudi officials for their alleged involvement in 9/11. Brought primarily on behalf of insurers who have paid out billions in ground zero claims, the lawsuit alleged that the Saudi government and the named officials provided financial and logistical support to Al Qaeda in the run-up to the attacks.

The Manhattan-based U.S. Court of Appeals for the Second Circuit ruled that the defendants were "immune" from the lawsuit under the Foreign Sovereign Immunities Act, which generally prevents foreign governments and their officials from being sued in U.S. courts. The FSIA law provides an exception from the immunity provisions for state-sponsored terrorist acts, however. Despite the belief among many intelligence observers that the Saudis are heavily involved in terrorism funding, the U.S. State Department (for geopolitical or other reasons) has never designated Saudi Arabia as a state-sponsor of international terrorism. As a result, the court ruled that it lacked "subject matter jurisdiction" over the case.

According to the court, "Although the FSIA did open an an avenue of redress for certain individual victims of state-sponsored terrorism, it did not delegate to the victims, their counsel and the courts the responsibility of the executive branch to make America's foreign policy response to acts of terrorism committed by a foreign state, including whether federal courts may entertain a victim's claim for damages." The case is In Re Terrorist Attacks on September 11, 2001, Docket No. 06-0319-cv(L), 8/14/08.

The three-judge panel made no factual findings per se in the case; its opinion was based merely on what amounts to a "mechanical" application of a federal statute. Although the mainstream media often fails to explain this to the public, courts often duck or postpone the big issues presented by a case by ruling on more narrow, procedural grounds.

For now, the defendants are off the hook. But the plaintiffs are considering appeal to the U.S. Supreme Court, or perhaps a request for a rehearing in front of the full Second Circuit bench. In the meantime, claims against other defendants, such as the Saudi-owned National Commercial Bank, are apparently still active; shortly after the appeals court ruling, Cozen O'Connor filed for additional "discovery" (i.e., requests for documents and other information) from the bank.

A summary of the lawsuit's extensive procedural history can be found here.

New FBI Investigation Guidelines

The New York Times is reporting that the U.S. Justice Department has a tentative plan to allow FBI agents "to open a national security or criminal investigation against someone without any clear basis for suspicion."

The plan has not yet been made public, but Congress received a private briefing about it in July. In a August 20 letter to Attorney General Michael Mukasey, four Senate Democrats claim that the plan "might permit an innocent American to be subjected to such intrusive surveillance based in part on race, ethnicity, national origin, religion, or on First Amendment activities."

However, Attorney General Mukasey gave a speech last week in which he indicated that the FBI would still need a valid purpose to investigate and that the proposal "clarifies the rules by which the FBI conducts its intelligence mission."

The AG is scheduled to respond to lawmakers' questions about the plan at a September 17 Congressional hearing. The guidelines are on hold until then.

Separately, President Bush has issued a very detailed Executive Order (as a revision to an earlier White House pronouncement) clarifying and perhaps expanding the cooperative roles and obligations of the various intelligence agencies in counter-terrorism activities. Among other things, it gives (or reaffirms) the Director of National Intelligence overall responsibility for ensuring a network of relationships, guidelines, procedures so that U.S. intelligence activities overseas and at home (including at the state and local levels) get coordinated, de-conflicted, and integrated. The order specifically states that "The United States Government has a solemn obligation, and shall continue in the conduct of intelligence activities under this order, to protect fully the legal rights of all United States persons, including freedoms, civil liberties, and privacy rights guaranteed by Federal law."

Sen. McCain on Privacy vs. Security

During last night's presidential forum at Saddleback church (which was televised by CNN), Rick Warren asked Senator McCain what takes precedence when the right to privacy and the right to national security collide. The Senator responded as follows:

It does collide and there are always competing priorities. We must preserve the privacy of all of our citizens as much possible because that's one of the fundamental and basic rights we have...but the point is we have now had technological advances over the last 20 or 30 years in communications that are remarkable. It's a remarkable ability that our enemies have to communicate so we have to keep up with that capability. I mean, there is too many ways and -- through cyberspace and through other ways -- that people are able to communicate with one another. So we are going to have to step up our capabilities to monitor those. Sometimes there are calls from outside the United States, inside the United States, there is all kinds of communications of every different kind. So you need congress to work together you need a judiciary that will review these laws that we pass and at the same time, it's just an example of our failure to sit down, Republican and Democrat, and work these things together for the good of the nation's security. Instead of this constant fighting which, according to our director of national intelligence, until we finally reached an agreement not long ago was compromising our ability to keep America from attack. And so there is a constant tension. It is changing with changes in technology and we have to stay up with it.

Time constraints prevented Warren from posing the same question to Senator Obama. The CNN website has the full video of the forum.

Revised Surveillance Measure Becomes Law

Some degree of conflict between privacy/civil liberties concerns and terrorism prevention and deterrence is inevitable. This comes to the surface because protections for personal privacy and freedom from government intrusion into our privacy (or freedom from intrusion by telemarketers or identity thieves for that matter) is something we all cherish. Privacy and civil liberties must be reasonably safeguarded even in a heightened homeland security environment.

On July 9, 2008, after prolonged Capitol Hill deliberations and dealmaking, President Bush signed HR 6304, the FISA Amendments Act of 2008 (also known as Public Law 110-261), into law after it finally won approval by both houses of Congress. The law, which overhauls the technologically primitive 1978 FISA Act, was passed in the nick of time for national security officials, since many of last year’s authorized wiretaps were due to expire in August, which could have put the intelligence community back to square one in terms of ongoing operations. The law is said to be the most significant expansion of the government's surveillance powers in a generation.

The FISA law is by no means your light summer reading. As the National Journal said in a very helpful tutorial, "it is a dense, often opaque, and patchworked set of new authorities that has puzzled even the few people who can actually call themselves FISA experts."

In the July 10 signing ceremony, the president commented that:

The bill will allow our intelligence professionals to quickly and effectively monitor the communications of terrorists abroad while respecting the liberties of Americans here at home. The bill I sign today will help us meet our most solemn responsibility: to stop new attacks and to protect our people...Last year Congress passed temporary legislation that helped our intelligence community monitor these communications. The legislation I am signing today will ensure that our intelligence community professionals have the tools they need to protect our country in the years to come...this law will protect the liberties of our citizens while maintaining the vital flow of intelligence. This law will play a critical role in helping to prevent another attack on our soil.

Some civil liberties groups and privacy advocates have been less than sanguine about the new law. They have vigorously insisted that the legislation violates the 4th Amendment’s prohibition against unreasonable searches and seizures.

For example, the Electronic Frontier Foundation, a proponent of digital freedom, claimed the law is a “full frontal assault on the Constitution,” and that it “betrays the spirit of 1776 by radically expanding the president’s spying powers and granting immunity to the companies that colluded in his illegal surveillance program.” The ACLU and other groups expressed like-minded sentiments.

Similarly, The New York Times editorial board argued that the law will serve to “wrench American’s civil liberties back to where they were in the days before Watergate, when the United States government listened to our phone calls whenever it wanted.”

In general, it feels inappropriate to dismiss these concerns out of hand, especially since there is always potential for abuse, particularly in the hands of an unscrupulous future administration. And virtually very law (even those seemingly benign or mundane) has loopholes and unintended consequences, let alone subject to "unique" court interpretations from sometimes grandstanding judges.

But doesn’t it seem that a lot of the opposition--to this point anyway--has more of a theoretical flavor to it as it applies to the ordinary, law-abiding citizen? One of the senators who supported the legislation said that the average American has nothing to fear from this broadening of the executive branch’s surveillance powers unless “you have Al Qaeda on your speed dial.”

And if the civil liberties absolutists are concerned about personal privacy, what about all the people walking through airports or down the street voluntarily giving up intimate details of their lives as they shout into their cell phones in public?

Separately, the last thing the court system and the overall economy really needs is for tort lawyers to move beyond class-action lawsuits against e.g., McDonalds, Starbucks, and Sears among others, for their real or imagined commercial sins, and set their sights on telecommunications carriers. When the trial lawyers get involved in a big way, it may be less about the Constitution and pen register and more about the cash register.

Most wiretaps (certainly an old-school term in the wireless era) will still have to be approved by the FISA court, and the authorities will still need a court order to listen in on a U.S. person, regardless of that person's location. Certain additional oversight mechanisms within all three government branches are incorporated into the new law. For what it's worth, one of its provisions states that the program “may not intentionally target any person known at the time of acquisition to be located in the United States.”

The law also allows for warrantless listening with the probable-cause approval of the U.S. attorney general for up to seven days in an emergency when intelligence officials are in hot pursuit of foreign intelligence information. After that, homeland security officials must petition the FISA court for a warrant. As a check on future administrations, the law reaffirms that the FISA process is the “exclusive” or only means by which electronic surveillance for intelligence purposes and the domestic interception of electronic communications can be conducted.

Critics of the surveillance program often cite the famous Ben Franklin quote that “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety,” in support of their point of view, although they often leave out the key words essential and a little temporary.

However, putting aside this use of editorial license, let’s remember that the contemporary threat comes from those with highly sophisticated technology and weaponry rather than flintlock muskets, and therefore these legal measures, and whatever trade-offs might be required, seem to be necessary for homeland security. As flawed as the legal system often is, the law needs to attempt to keep pace with changing technology. And as the National Journal points that FISA does not apply to domestic criminal surveillance, only to foreign spies and terrorists

As an Associated Press article explained:

The original FISA law required that the government to get wiretapping warrants for each individual targeted from inside the United States, on the rationale that most communications inside the U.S. would involve Americans whose civil liberties must be protected. But technology has changed. Purely foreign communications increasingly pass through U.S. wires and sit on American computer servers, and the law has required court orders to be obtained to access those as well.

Opponents of the measure will be challenging the constitutionality of its provisions in federal court, so it still remains to be seen to what extent the new law will be fully implemented. Who knows--the court challenges might still be pending when the FISA amendments expire on December 31, 2012.

[originally posted 8/8/08, 6:49 a.m. Reposted 8/9/08]