ACLU Vs. NSA Lawsuit Heard Today

Today is the day for the ACLU’s attack on the NSA terrorist surveillance program in Detroit. The ACLU wants the program completely shut down. The plaintiffs don’t really even have a case sense they have absolutely no evidence that they have been spied on. They are arguing that the mere existence of the program prevents them from talking to clients and being able to do research. The Government is doing its best to get the lawsuit tossed out in order to protect classified information.

I found this exerpt from the ACLU’s press release particularly amusing:

“Under our Constitution, no one is above the law, not even the president,” said Ann Beeson, Associate Legal Director of the national ACLU, who argued today’s case. “The government’s arguments that the president, alone, can decide to spy on Americans without a warrant are fundamentally un-American and contradict the vision of the founders of our democracy.”

However, the government argued that ACLU’s defense of the constitution and checks on presidential power were “extreme.” In response, Beeson said, “If our view of the separation of powers is extreme, than the Constitution is extreme.”

Beeson’s elite conclusion that if the ACLU’s interpretation of the Constitution is viewed as extreme, which it is by most people with common sense, then the Constitution itself must be extreme is a bit extreme in itself. The press release goes on to include a bunch of Orwellian scare tactics that will most likely drum up a few more fund raiser dollars from the paranoid.

Via AP

The government’s warrantless domestic spying faced its first courtroom test Monday, with the Bush administration arguing that the program is well within the president’s authority but that proving it would require revealing state secrets.

U.S. District Judge Anna Diggs Taylor heard arguments in a case brought by the American Civil Liberties Union against the National Security Agency. The ACLU wants the program halted immediately, arguing that it violates the rights to free speech and privacy.

The judge gave no indication of when she might rule.

The ACLU said the state-secrets argument is irrelevant because the Bush administration already has publicly revealed enough information about the program for Taylor to rule.

But government attorney Anthony J. Coppolino told the judge that the case cannot be decided based on a “scant public record.”

“This case does not involve easy questions,” he said. “It’s a case that requires a robust factual record.”

Coppolino alluded several times to a classified court filing, which Taylor indicated she had not yet reviewed. In that brief, he said, the government has demonstrated that the program “is narrowly and specifically focused on al-Qaida.”

The plaintiffs do not have access to the classified brief, and even the judge would have to make a special request and travel to Washington to read it, said Ann Beeson, the ACLU’s associate legal director and the lead attorney for the plaintiffs.

Monday’s hearing was the first time the constitutionality of the eavesdropping was argued in court. A similar lawsuit was filed in federal court in New York by the Center for Constitutional Rights, but no hearings have been held there yet.

Sean Hackbarth at The American Mind:

Suppose Judge Anna Diggs Taylor agrees with the ACLU and orders the program shut down. Is the ACLU willing to accept responsibility for another terrorist attack on U.S. soil? It’s easy to preen about civil liberties in the abstract when not all the facts are known.

Are you kidding? The ACLU accept responsibility?

Most likely the judge will not rule in favor of the ACLU, and of course that is what we are hoping for. Even the civil rights litigator Glenn Greenwald is not particularly optimistic.

The lawsuit cannot maintain a direct attack on the legality of warrantless eavesdropping because it is very difficult to find a plaintiff who has “standing” to challenge the program, because nobody knows who has been the target of the eavesdropping and, therefore, no individual can prove that they were injured by the program. The theory of the lawsuit — that its mere existence deters citizens from freely exercising their free speech rights — is a mildly creative tactic for overcoming this legal hurdle. The lawsuit is an attempt to enable the federal judiciary to adjudicate the legality of the NSA program even in the absence of a plaintiff who was demonstrably subject to warrantless eavesdropping.

Jeremy Dibbel at The Moderate Voice notes the same thing.

None of the plaintiffs have offered proof they were spied on. Rather, they maintain that the simple existence of the program has impeded their ability to perform their jobs as journalists and lawyers.”

He goes on to state that the invocation of the “state secrets” doctrine is probably the nail in coffin on this issue. We will be keeping a close eye on new developments in this case. It is going to be very interesting no matter which way it plays out.

Also see: Strata Sphere

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