Statements of FAA Challenge Plaintiffs

Document Date: May 5, 2008

Naomi Klein of The Nation
Chris Hedges of The Nation
Scott McKay & David Nevin
Washington Office on Latin America
Dale Needles of Global Fund for Women

As a journalist, I’m very concerned about the normalization of surveillance. We have grown accustomed to the idea that the United States government is monitoring our communications without burden of proof. We don’t often think about how government surveillance violates our right to privacy, or the dangerous threat it poses to candid, open conversation. But that threat is very real.

My work requires frequent communication with sources all over the world. Conversations with Coalition Provisional Authority officials in Iraq, advocates for indigenous rights in Argentina, and activists in Colombia are indispensible to my reporting. Much of the substance of those conversations is published in the pages of The Nation, The Guardian, and other newspapers. But every source asks that some information they share with me remain off the record, and with good reason. Sensitive details are omitted, often because their disclosure would put my sources in great danger. Not because these sources are terrorists, but because even something like nonviolent activism scares a paranoid government.

It’s not just my professional contacts that are in danger. I frequently send emails and call to foreign countries, simply staying in touch with friends whom I have met in my travels. For example, I email an Iraqi woman who served as one of my translators. At one point her brother had been detained because of his political activity in Iraq. Her brother is a member of a Sunni political group and at one point he had been detained. She and I corresponded about her brother, why he was being held and what to do about it. I worried that these conversations might also put her at risk if U.S. surveillance continues to be conducted without meaningful oversight.

Unchecked surveillance is extremely vulnerable to abuse. That abuse can put almost anyone in great jeopardy. I cannot in good conscience accept that my conversations with foreign nationals will put them at such risk. I have an expectation of privacy in my communications, and I have a right to it.

I am no stranger to violence, conflict and acts of terror. I covered wars and terrorism as a reporter for nearly two decades, most of them with The New York Times. I was in Central America for five years covering the conflicts in El Salvador, Nicaragua and Guatemala. I spent seven years in the Middle East and three years covering the war in the former Yugoslavia. I was based in Paris after the attacks of 9/11 and covered al-Qaeda in Europe and North Africa. I know the cost of terrorism and the consequences of war. I continue to communicate by phone and email with people — anonymous sources among them — in many of these regions.

Those who use fear and the specter of terrorism to justify spying on Americans are attempting to make work like mine impossible. They seek to silence reporting that does not cater to their peculiar vision of the world. I am wary of late-night, last minute briefings, of rushed legislation, and bills which strip from the law the most fundamental checks and balances upon which our democracy depends.

I joined this lawsuit because as a journalist I believe that excessive surveillance in the name of fear is the first step towards totalitarianism. When the administration brands those who stand up for the civil liberties and Constitutional protections (the very ones they say they are fighting to protect) as naïve or turncoats, liberty is in peril.

This law does away with the basic privacy protections guaranteed by the Fourth Amendment. I often report from countries where totalitarian governments routinely violate the privacy of their citizens and where it is not safe to express political or personal opinions to any outsiders. The perception of the United States as a law abiding, rights-respecting country, in the past, often created a sense of security for my sources. They knew they did not have to worry about their rights being violated by the American government. They could speak with me freely. I rely on that sense of privacy in order to get to the truth. Without it, free speech and the freedom of the press — hallmarks of a free society — suffer incalculable harm.

When privacy and free speech are diminished, our democratic institutions crumble. I believe that the majority of my international communications will be intercepted by the government without any meaningful oversights or checks on that intrusive power because of this law. This law is using terrorism as a red herring to permit wholesale spying. It is being used to thwart reporting that shines a light on aspects of U.S. policy those in power find inconvenient and seek to keep secret. This law removes our Constitutional right, indeed our duty, to expose deceit and lies, to inform the American public and to protect democratic dissent. We cannot be paralyzed by fear. We will be stripped, if we do not resist, of our few remaining rights. To resist, while there is still time, is not only the highest form of spirituality but the highest form of patriotism. It is, if you care about what is worth protecting in this country, a moral imperative.

We are defense attorneys who communicate with clients and their family members, potential clients, witnesses and potential witnesses via international and domestic calls and emails. We are concerned that, under the new law, the National Security Agency may be monitoring our communications, particularly because there have been numerous reports that the government is monitoring communications in and out of countries in which we have clients.

Confidential communications are the bedrock of criminal representation and essential to our work. We have an ethical obligation to maintain client confidentiality, and we can’t have substantive legal communications about the cases in which we are involved if we can’t ensure that those communications are confidential.

We are joining the lawsuit because the new wiretapping law will make ethical, effective representation of our clients nearly impossible. For example, we have one client in Saudi Arabia for whom representation will require a great deal of communication. Because the new law permits the government to intercept international calls and emails between people in the U.S. and people abroad without a warrant or any real oversight, we will be forced to travel to Saudi Arabia for face-to-face contact every time we want to speak with him or his family about the case, which is entirely impractical. But it will be the only way to ensure our communications are truly confidential.

In addition, we have recently joined the ACLU’s John Adams Project, which was formed to assemble civilian defense teams to assist in the representation of Guantanamo detainees at their military commissions. As part of that Project, we have offered to represent Khalid Sheikh Mohammed, whom the government accuses of masterminding the 9/11 attacks. Our offer of representation has required us to be in regular correspondence with Mohammed’s military defense counsel and to visit Guantanamo on more than one occasion. Our work may require us to correspond with potential witnesses about sensitive information, making us even more susceptible to improper government surveillance.

We are hopeful that this law will be overturned in order protect attorney-client confidentiality, which is essential to the American justice system.

The Washington Office on Latin America (WOLA) is, first and foremost, an advocate for human rights. We serve as a resource for Latin American non-governmental organizations, foster dialogue and debate between them and U.S. lawmakers and policy formulators, and monitor the impact of U.S. policy on human rights and democracy in Latin America. We conduct ground-breaking research in Latin America on everything from drug control policy and gang violence to rural poverty and police reform. Our work is widely cited in U.S. policy circles, the media and academia.

As you can imagine, our work requires a great deal of discretion. When you are documenting human rights abuses in Colombia or monitoring links between the drug trade and organized crime in Central America, your ability to keep confidences is critical. We often obtain sensitive information from individuals who put themselves at great personal risk by giving us information in confidence. The new wiretapping law jeopardizes that expectation of confidentiality upon which we rely to do our work. Under the Protect America Act, the U.S. government can gather our international emails and phone calls without a warrant, and the mere knowledge of that will undermine our ability to guarantee privacy to our colleagues and contacts in Latin America.

For WOLA, the implications of this bill are deeply worrisome. If our contacts know their phone conversations and emails may not be secure, they will be reluctant to talk to us. We could either lose critical communications or be forced to travel great distances, at great cost, to speak to our contacts in person. For some of our work, like that in Venezuela, Cuba or Colombia, even scheduling travel or setting up meetings by telephone or Email could jeopardize our partnerships because those communications, too, would be subject to warrantless surveillance by the U.S. government.

The pressure to keep silent about human rights violations is always great. By compromising the ability of our contacts to share information about rights abuses with us in confidence, the U.S. government adds to that pressure to keep silent. Whether we are talking to a labor leader facing persecution in Colombia, a free-speech activist in Venezuela or a government whistleblower denouncing harmful counter-drug strategies in the Andes, our contacts must be able to trust that we operate free from unreasonable government intrusion. Anything less will impair their, and our, free speech. Without access to free speech, it becomes much easier for the powerful to silence voices that speak out for dignity and respect for human rights everywhere.

As the Chief Operating Officer of a foundation charged with providing grants aimed at advancing women’s human rights around the world, I see every day just how essential confidential communication is for ensuring the protection of some of the world’s most vulnerable populations. I am joining this lawsuit in an effort to maintain our ability to help improve the rights of women across the globe.

At Global Fund for Women, we raise funds from a variety of sources and make grants to women-led organizations that promote the economic security, health, safety, education and leadership of women and girls. Since 1987, Global Fund for Women has awarded more than $58 million to over 3,400 women’s organizations in over 166 countries.

In an effort to publicize our grant-making and to try to get a sense of what is happening on the ground regarding women’s human rights issues around the world, our international advisors communicate with every potential grantee. Many of these conversations involve sensitive, confidential information because of the nature of the work we do on issues like reproductive choice, political participation, rights of sexual minorities and prevention of violence against women and children. Many of our grantees work in conflict zones or on issues that are extremely controversial in their communities. On an almost daily basis, we communicate with people in Iraq, Pakistan, Indonesia, Zimbabwe, Mexico, Columbia, Palestine, Afghanistan, Egypt, Israel, Lebanon, Morocco, Turkey and Yemen, to name just a few — countries in which it is obvious from news reports that the U.S. government is actively monitoring particular groups and situations on the ground.

The bill will have a very real negative effect on our work. Once Global Fund for Women is stripped of its ability to communicate confidentially with our international partners, it loses the ability to have open and trusting exchanges with our grantees. Many of the groups we work with would be highly concerned if their communications were intercepted, or had the potential to be intercepted, by the U.S. government. And if we were to be seen as an arm — even an unwilling one — of U.S. intelligence, it would prevent groups from even talking to us, which would severely harm our ability to carry out our core mission: enhancing women’s rights.

We have no issue, of course, with our government monitoring people who are threats to the United States. The problem with the the bill is that it allows dragnet surveillance that is not targeted at specific threats. This kind of surveillance law sweeps unnecessarily broadly and will have serious implications for the work that we do.

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