Gitmo Lawyers Challenge FISA Bill in Court

Today From Thinkprogress.

Yesterday, lawyers for Guantanamo Bay detainees asked a federal judge in San Francisco to invalidate the recently-passed FISA law that lets the Bush administration conduct warrantless surveillance on suspected terrorists without first getting court-approved warrants.

"We are asking your honor, as swiftly as possible, to declare this statute unconstitutional," said Michael Avery, a lawyer for the Center for Constitutional Rights. ... "Neither Congress nor the president has the power to repeal the Fourth Amendment’s warrant requirements," Avery said.

Oh boy, it's on now.

In full disclosure, I have to say that this new court move doesn't necessarily surprise me. I even wondered if this might have been part of the rationale for some Dems, when you look at what happened the last time Congress completely rolled over with the Military Commissions Act less than a year ago.

Yeah, ok, maybe that is just wishful thinking.

But following their defeat on the Hamdan V Rumsfeld case, the MCA was rushed through Congress and since then the administration has lost a major decision concerning "right " to hold someone indefinitely without charges before the 4th Circuit Appeals Court, and then two separate Military Judges ruled that the commissions have no jurisdiction to try detainees.

That's Game, Set and Match on the MCA.

So I would say that the overall track record of the Gitmo Attorneys is pretty good despite the fact the ACLU's own FISA case was thrown out since the petitioners couldn't "Prove that they had been illegally spied" upon.

Even though the plaintiffs alleged a well-founded fear that their communications were subject to illegal surveillance, the court dismissed the case because plaintiffs could not state with certainty that they had been wiretapped by the National Security Agency.

BTW how exactly do you prove that a secret government program is specifically spying on you? If they are breaking the law and hiding behind "National Security" how exactly do you catch them without committing "treason?"

But that issue isn't really a problem for the Gitmo attorney's.

In CCR v. Bush, the Center is arguing that the government’s surveillance jeopardizes its ability to represent Gitmo clients. CCR reports that it has engaged in thousands of telephone calls and e-mails with people outside the United States in the course of its representation.

The Center writes, "Given that the government has accused many of CCR’s overseas clients of being associated with Al Qaeda or of being of interest to the 9/11 investigation, there is little question that these attorneys fall within the likely range of victims of the NSA Surveillance Program."

In their case, it's not a matter of thinking their clients "might" be associated with al Qaeda - they already have been.

Anthony Coppolino, a special counsel to the Justice Department, refused to rebut the challenge to the new law. Copppolino offered this defense: "It’s possible that their clients were and it’s possible that their clients were not" spied on.

With the previous decision by Federal Judge Ann Diggs Taylor that the NSA program as it existed was clearly and obviously illegal and violated the 1st and 4th Amendments already on the books, this decision shouldn't be a difficult one. And Judge Taylor wasn't alone.

A separate federal district court in San Francisco had previously rejected the administration’s argument that the courts could not hear the case due to a "state secrets" privilege.

Taken together these previous decisions lay a road map that just might not take that long for DC Circuit Federal Judge Vaughn Walker to navigate and immediately bring the implementation of this new FISA law to a screeching halt.

But then again, it might take some time. Either way, I'm optimistic - very optimistic.

The right wing will of course attempt to spin this into Dems "Not having the stomach to fight the war on Terror" but we have to push back and point out that this isn't about not wanting to listen to terrorists, it's about protecting innocent people from having their lives intruded upon and being mistakenly caught up in the terror web as people such as Maher Arar and Abu Omar have. Both of whom were innocent, yet mistakenly detained, then rendered to foreign a government where they were tortured. Or AP photographer Bilal Hussein whose been held by U.S. Forces in Iraq for months without explanation or charges just like the other 14,000 people that the U.S. is holding worldwide as "Security Threats."

If they are guilty of something - charge them and prove it in a regularly convened court - otherwise let 'em go.

Although Mitt Romney might be unaware of it, surprise - surprise, we already have been going into friendly countries without their permission and knowledge and snatching people up. (That's what happened to Omar and the Italian government now has warrants issued for 19 members of the CIA "Grab Team" who did it) At a certain point we really need to make sure these are the right people, and that the wrong people - the rest of us - are reasonable protected from being illegally and unconstitutionally spied upon or mistakenly suffering this fate.

Vyan