By Steven Goldberg

In a commentary in The Oregonian on Aug. 19 ("Wondering about wiretaps: On surveillance, feds are listening but not talking"), David Sarasohn notes that a small group of senators, led by Oregon's Ron Wyden, has questioned the implementation of amendments to the Foreign Intelligence Surveillance Act (FISA) by the National Security Agency. The government's power to listen in on phone calls and emails of U.S. citizens who are outside the U.S., or are communicating with someone outside the U.S., has increased dramatically. Yet other than these few senators, no one seems to care -- not the NSA, not the Obama administration, not the American people and now, it seems, not the courts.

On Aug. 7, the 9th U.S. Circuit Court of Appeals upheld the Bush administration's decision to ignore constraints imposed by FISA requiring the NSA to get a warrant -- albeit from a secret FISA court -- before monitoring the international communications of the Oregon-based nonprofit Al-Haramain Islamic Foundation (AHIF). The justification to conduct warrantless surveillance, first revealed by The New York Times in an article in 2006, was that it was the president's prerogative to ignore Congress when national security was at stake. Challenges to the NSA's wiretap program were subsequently rebuffed by Congress -- which immunized the telecommunications companies that had cooperated with the NSA from suit -- and to a major extent by the courts, arguing that no one could prove he or she had in fact been surveilled under this secret program.

But, remarkably, AHIF did have proof, as a result of an inadvertent disclosure of a top-secret classified document by the government. More than six years of litigation ensued, with the government first challenging use of the document under the state secrets privilege. After the case was transferred to federal court in San Francisco, Chief Judge Vaughn Walker allowed AHIF to nonetheless rely on the document based on FISA's own provisions allowing classified documents to be used in FISA cases. Judge Walker ordered that AHIF lawyers be allowed to apply for security clearances to be able to use the document in the litigation. Clearances were granted. Still the government refused to allow the document to be used. Ultimately Judge Walker ruled that the Bush administration's refusal to follow FISA's warrant requirement was an improper assertion of presidential authority.

However, as David Sarasohn discusses, Congress loosened the warrant requirement in its 2008 amendments to FISA. Still, the Obama administration appealed Walker's decision, presumably concerned about its impact on presidential authority. The 9th Circuit has now ruled not that the warrantless wiretap program was legal, but that it could not be challenged by a lawsuit against the government. Congress may have created a remedy for suing for damages if you were illegally subject to surveillance. But according to the Court, the government did not waive its right to be immune from suit. A claim without a remedy, it seems; and so this critical question of separation of powers remains unanswered.

It is doubtful Congress will do anything to resolve this conundrum. Concerns with national security seem to have trumped civil liberties these days -- whether U.S. citizens' conversations are surveilled or they are killed by drone attacks outside the U.S. with no due process or they are placed on no-fly lists for no apparent reasons. The government listens, Americans are presumably more secure ... and the erosion of our civil liberties just keeps rolling on.

Steven Goldberg is a Portland attorney.