Federal court to hear NSA wiretap case Monday
WASHINGTON - The Bush administration's domestic surveillance program will be challenged in federal court in Detroit on Monday when lawyers from the American Civil Liberties Union argue that wiretapping without warrants is a violation of the constitution.
It will be the first time a federal court has reviewed the legality of National Security Agency eavesdropping on phone calls between people in the United States and others overseas with suspected links to terrorist groups.
The case pits constitutional protection of personal freedoms against tactics employed by a wartime president to protect the country against terrorist attack. Whatever decision is reached by the district court will likely be appealed in a case expected to reach the U.S. Supreme Court.
The Justice Department has already sought to have the case dismissed on the grounds that the legal proceedings have the potential to expose national security secrets to public view. That argument was rejected, though, by U.S. District Judge Anna Diggs Taylor, who will preside over oral arguments on Monday.
"What's at stake is whether there will be any independent checks on this president," said Lisa Graves, counsel for legislative strategy in the Washington office of the American Civil Liberties Union (ACLU), which, along with the Center for Constitutional Rights in New York, filed suit against the Bush administration. "No president should have the power to unilaterally decide who to wiretap in this country."
Administration officials have countered that the president has the legal authority to order wiretaps without warrants to help thwart the activities of terrorist groups like al-Qaida, which carried out the 9/11 terror attacks.
"The ACLU's position undervalues the need to protect public security," said constitutional law professor Lino Graglia at the University of Texas. "We have a view by a Brahman class — a high elite — that simply puts personal privacy rights above saving lives."
Weeks after the Sept. 11 attacks, President Bush issued a top secret order authorizing the National Security Agency (NSA) to use its high-tech eavesdropping equipment to listen in on phone calls and electronic mail coming into the United States or originating here if there were suspected links to individuals or groups with terrorist ties.
The Fourth Amendment of the constitution prohibits "unreasonable searches and seizures" without a judicial warrant affirming that there is "probable cause" for suspecting criminal activity.
The Foreign Intelligence and Surveillance Act, passed in the wake of the Nixon administration's widespread abuse of domestic wiretaps, created a secret court that can quickly issue such warrants. FISA warrants can be issued up to several days after a wiretap takes place, provided probable cause can be demonstrated.
Former NSA director Gen. Michael Hayden, confirmed last month as the new director of the Central Intelligence Agency, has said the NSA often gets FISA warrants for wiretaps. NSA employees also listen in on conversations without such warrants, however, if they suspect links to terror groups.
"They're targeted on al-Qaida," Hayden testified last month before the Senate Intelligence Committee. "There is a probable cause standard. There is a literal target folder that explains the rationale and the answers to the questions on a very lengthy checklist as to why this particular number we believe to be associated with the enemy."
Hayden said he had personally instructed NSA employees conducting the surveillance to focus on calls thought to be al-Qaida linked, "and not one photon or one electron more," noting that the problem is regularly reviewed by the office of the NSA Inspector General and by White House and Justice Department attorneys.
The problem, the ACLU contends, is that the oversight, however thorough, is being conducted by the executive branch of the government, with no effective independent review. The top secret NSA program has been shielded from scrutiny by Congress and the federal courts because its operations are highly classified.
In its suit, the ACLU also contends that the NSA surveillance program violates First Amendment protections of freedom of speech and assembly by intruding into the private conversations and e-mail exchanges of individuals and organizations.
White House and Justice Department attorneys contend that the program is legal because the constitution gives a president the authority he needs to protect the country, an argument some constitutional scholars accept.
"Obviously the president is the commander-in-chief," said Graglia, "and has the necessary power to exercise that function."
That argument, though, could be construed to justify extraordinary executive powers in ways the constitution did not intend, said the ACLU's Graves. "This power," she said, "has no limit."
In the Detroit federal court, Judge Taylor must weight the threat to personal liberties and the need for separation of government powers against the president's sworn duty to protect the country.
"I am a strong supporter of the First Amendment, the Fourth Amendment and civil liberties," said Senate Intelligence Committee Chairman Pat Roberts, R-Kansas. "But you have no civil liberties if you are dead."
Bob Deans' e-mail address is bdeanscoxnews.comMORE IN NewsPORTLAND, Maine — U.S. Sen. Full Story
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