Appeals Court OKs Challenge to Warrantless Electronic Spying

A legal challenge questioning the constitutionality of a federal law authorizing warrantless electronic surveillance of Americans inched a step closer Wednesday toward resolution.

The 2nd U.S. Circuit Court of Appeals for the second time rejected the Obama administration’s contention that it should toss a lawsuit challenging the 2008 Foreign Intelligence Surveillance Amendments Act. Among other things, the government said the plaintiffs — Global Fund for Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation magazine, PEN American Center, Service Employees International Union and others — don’t have standing to bring a constitutional challenge because they cannot demonstrate that they were subject to the eavesdropping or suffered hardships because of it.

The lawsuit, backed by the American Civil Liberties Union, was lodged within hours of the FISA Amendments Act (.pdf) being signed into law by President George W. Bush in July 2008. The legislation is being challenged because it allows the National Security Agency to electronically eavesdrop on Americans without a probable-cause warrant if one of the parties to the communication resides outside the United States and is suspected of a link to terrorism.

“It is the glory of our system that even our elected leaders must defend the legality of their conduct when challenged,” (.pdf) Judge Gerard Lynch wrote for the divided court.

In a 6-6 vote, the New York-based appeals court let stand its March decision allowing the case to proceed. A majority vote of the court’s active judges is required to rehear cases.

After three years of litigation over whether the plaintiffs had standing, the merits of the case could soon be litigated in a New York federal court. That is, if the Supreme Court does not intervene or the administration does not play its trump card: an assertion of the powerful state secrets privilege that lets the executive branch effectively kill lawsuits by claiming they threaten to expose national security secrets.

The courts tend to defer to such claims. But in a rare exception in 2008, a San Francisco federal judge refused to throw out a wiretapping lawsuit against AT&T under the state secrets privilege. The AT&T lawsuit was later killed anyway, because the same FISA Amendments Act also granted the phone companies retroactive legal immunity for their alleged participation in warrantless wiretapping of Americans’ internet communications.

The Electronic Frontier Foundation claims the spying is ongoing and telecoms are siphoning all electronic communications to the National Security Agency without warrants. An EFF lawsuit challenging the immunity is on appeal at the San Francisco-based 9th U.S. Circuit Court of Appeals.

The FISA Amendments Act — which passed with the support of then-senator Barack Obama — generally requires the Foreign Intelligence Surveillance Act Court to rubber-stamp terror-related electronic surveillance requests. The government does not have to identify the target or facility to be monitored. It can begin surveillance a week before making the request, and the surveillance can continue during the appeals process, in the rare instance of rejection by the secret FISA court. The FISA Act, first enacted in 1978 in the wake of disclosures about abuses of intelligence powers to spy on Americans, previously required targeted warrants for any spying directed at American citizens.

The plaintiffs in the 2nd Circuit case claim the legislation chills their speech, and violates their Fourth Amendment privacy rights. In a bid to win standing, they argued that they often work with overseas dissidents who might be targets of the National Security Agency program. So instead of speaking with those people on the phone or through e-mails, the groups asserted that they have had to make expensive overseas trips in a bid to maintain attorney-client confidentiality.

Photo: Agitproper/Flickr

WikiLeaks Founder Loses Control of His Memoir

WikiLeaks founder Julian Assange has lost control of more than just the U.S. State Department cables he possessed. He has also lost control of a memoir he had planned to publish.

Assange’s British publisher, Canongate Books, announced on Wednesday that it would release an unauthorized memoir about Assange on Thursday, despite his objections to the project and attempts to pull out of a previous agreement with the publisher.

The now-unauthorized authorized autobiography is said for the first time to address the events between Assange and two women in Sweden that led to sex-crimes allegations against him and a costly legal battle to fight his extradition from the United Kingdom to Sweden.

Assange had signed much ballyhooed agreements last December with Canongate in Britain and with Alfred A. Knopf in the United States to tell his story. The deal was reportedly worth around $1.3 million, though Canongate spokeswoman Liz Sich has called that number “totally inaccurate,” while declining to provide an accurate number.

The book was intended to be part-memoir and part-manifesto, the latter focusing on the WikiLeaks operation and its fight for transparency. Assange predicted at the time that his book would become “one of the unifying documents of our generation.”

But after spending 50 hours meeting with a ghost writer at Ellingham Hall — the country estate in the UK where Assange is under house arrest while awaiting a ruling on his extradition case — Assange grew uncomfortable with the project. According to a statement on the publisher’s web site, the project proved to be “too personal” for the transparency guru, who suddenly decided in March after reviewing the first draft of the manuscript that “all memoir is prostitution.” Sources told The Independent that Assange felt the book was too heavy on personal details and too light on manifesto.

Although 38 other publishers around the world had already sub-contracted with Canongate to release the book, Assange formally moved to withdraw from the Canongate contract in June. But according to the publisher, he had by then already tied up the advance money he had received for the project and therefore could not pay it back. The Independent reports that the money may have been put into escrow to pay Assange’s legal bills for fighting the sex-crimes case.

Knopf said in a statement that it did cancel its separate contract with Assange, telling the Associated Press, “The author did not complete his work on the manuscript or deliver a book to us in accordance with our agreement. We will not be moving forward with our publication.”

But Canongate decided to go forward with its publication of the book, despite Assange’s objections. The publisher reportedly gave Assange opportunity to revise the book, but he failed to deliver any changes. The publisher also gave him a “twelve day window to seek an injunction” against the project, but that expired on Monday with no action on Assange’s part, according to The Independent.

Scottish novelist Andrew O’Hagan, who was the ghostwriter on the book, delivered the draft to Canongate last March. But he subsequently asked for his name to be removed from the book.

Canongate is calling the book “the unauthorised first draft” of Assange’s story.

“It is passionate, provocative and opinionated – like its author,” Canongate said about the book in its statement. “It fulfils the promise of the original proposal and we are proud to publish it.”

The book, which the British newspaper The Independent plans to begin excerpting Thursday, contains a chapter devoted to the sex-crimes allegations in Sweden, in which Assange repeats the much-criticized claim that he had been warned by a source in an unnamed intelligence agency that the US government had planned to set him up. According to The Independent, Assange admits to sleeping with the two women – referred to as A and W in the book – but asserts that their allegations that some of their sexual encounters were not consensual are simply motivated by his failure to return their calls or are part of a conspiracy to get him.

“The international situation had me in its grip, and although I had spent time with these women, I wasn’t paying enough attention to them, or ringing them back, or able to step out of the zone that came down with all these threats and statements against me in America,” Assange states in the book, according to The Independent. “One of my mistakes was to expect them to understand this? I wasn’t a reliable boyfriend, or even a very courteous sleeping partner, and this began to figure. Unless, of course, the agenda had been rigged from the start.”

Assange’s previous claim that the CIA was behind the women’s allegations against him caused a rift between him and other members of WikiLeaks who criticized him for making allegations he couldn’t back and for getting WikiLeaks’s business and reputation entangled in his personal affairs.

Canongate Books has reportedly printed and distributed thousands of copies of the memoir under tight security, in order to prevent Assange from stopping its publication.

The book will go on sale in stores and online on Thursday.

Assange will receive royalties from the book he now claims he doesn’t want published, after the advance is paid back in sales, according to Canongate spokeswoman Sich.

It’s not the first time that Assange has lost control over the publication of material. Last month, he lost control of a WikiLeaks database containing more than 250,000 U.S. State Department cables after a German newspaper reported that supporters of the organization had inadvertently published a full copy of the database online. Although the file was password protected, the password had been revealed in a book that the Guardian newspaper had published about WikiLeaks, making it possible for anyone to grab the file and unlock the unredacted cables.

Photo: Julian Assange (center) speaks to the media, flanked by his lawyers Mark Stephens (left) and Jennifer Robinson after making a appearance at Belmarsh Magistrates’ Court in London, Tuesday, Jan. 11, 2011. Matt Dunham/AP