Feds: ACLU Wouldn’t Know if It Were Wiretapped

A landmark legal showdown over how much authority the U.S. president has to wiretap the communications of American citizens without congressional or judicial approval played out this afternoon in a Cincinnati courtroom.

Lawyers for the American Civil Liberties Union (ACLU) and the National Security Agency (NSA) appeared today before a three-judge panel of the 6th Circuit Court of Appeals at the federal courthouse downtown. The ACLU wants the court to affirm an August ruling by a federal judge that the Bush administration’s warrantless wiretapping program is unconstitutional and violates the Foreign Intelligence Surveillance Act (FISA).

Bush began the program after the Sept. 11, 2001, terrorist attacks. He said it’s a vital method for monitoring communications between terrorist groups overseas and their agents within the United States.

The appellate court’s decision will have national significance and constitutional ramifications involving the president’s wartime authority and separation of powers between the legislative and executive branches of government.

The courtroom was filled today with a capacity crowd of national media and legal observers, and the overflow was led to another room with a live video feed of the proceedings.

Passed by Congress in 1978, FISA outlines procedures for the physical and electronic surveillance of foreign agents by the U.S. government. Among its provisions, the law created a secret court to oversee requests for surveillance warrants by federal agencies such as the FBI against suspected agents working for foreign nations and located within the United States. Eleven judges appointed by the Chief Justice of the U.S. Supreme Court staff the court, and each serves seven-year terms.

When The New York Times revealed President Bush’s secret warrantless wiretapping program last year, Bush initially claimed that he had presidential authority to create such a program and it didn’t have to fall under the FISA court’s oversight. After U.S. District Court Judge Anna Diggs Taylor ruled the program unconstitutional and illegal, the Bush administration abruptly changed course Jan. 17, and allowed surveillance requests to be reviewed by the FISA court.

As a result, government lawyers called the case moot and want it dismissed but the ACLU seeks a ruling to prohibit Bush from possibly taking the domestic surveillance program away from FISA oversight at anytime in the future, without the public being made aware of the change.

“It’s this court’s duty to serve as a check on the arbitrary use of government power,” Ann Beeson, the ACLU’s associate legal director, argued before the appellate court panel. “A failure to decide the case would leave it up to the president to decide whether and when to follow the law.”

FISA was enacted to prevent abuse of domestic surveillance by government agencies, which happened in the past against civil rights leader Martin Luther King Jr. and anti-war protesters during the Vietnam War era, for example.

NSA lawyers said the ACLU has no legal standing to pursue the case. Further, court precedents require any legal challenge to surveillance must show specific instances of government misconduct beyond the act of surveillance itself, they added.

“The plaintiffs in this case don’t know whether they’ve been subject to surveillance. The government has never confirmed or denied that,” said Gregory Garre, the U.S. Justice Department’s terrorism litigation deputy counsel.

Beeson countered, however, that the program harms the effective representation of suspected terrorists held at the Guantanamo Bay prison by their lawyers, as well as by journalists covering terrorism-related issues. The government’s argument creates a Catch-22 situation for defense lawyers: Either they cannot effectively represent their clients or must reveal confidential attorney-client communications to later lodge a complaint.

The Bush administration isn’t hampered by FISA constraints, Beeson said, because it allows warrantless wiretapping for up to 15 days after a declaration of war and also allows wiretapping for up to 72 hours before a request for a warrant is filed. A key provision, though, states the surveillance must stop if the communications veers into confidential attorney-client privilege.

The three-judge panel seemed concerned that affirming Bush’s program as unconstitutional might be overstepping legal precedent. Even ruling for the government, though, would essentially declare the earlier FISA law unconstitutional, Beeson replied.

“That would be the radical ruling,” she said. “That would be the ruling that interferes with 200 years of jurisprudence.”

The judges will take the case under review. There is no deadline for issuing a ruling but both sides expect a decision within the next several weeks.

— Kevin Osborne

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