NSA Warrantless Surveillance Case in Court Today

The ACLU argued its case against NSA warrantless electronic surveillance in a federal court in Michigan today.

A lawyer representing plaintiffs in the case said that the very statute the administration admits violating, the Federal Intelligence Surveillance Act, provides the mechanism by which the president can properly order spying. The law even provides for warrantless wire tapping for 15 days after the start of a war or for 72 hours in specific cases, after which the government can seek a warrant, argued Ann Beeson, a lawyer for the American Civil Liberties Union.

"The government has admitted the NSA is eavesdropping and not obtaining a warrant," Beeson said. "The Congress has expressly rejected language to broaden the president's authority."

Legal expert Andrew Cohen provides analysis in today's Washington Post.

In a case poignantly styled ACLU v. NSA, a group of attorneys, journalists and scholars are asking U.S. District Judge Anna Diggs Taylor of the Eastern District of Michigan to issue an order that would enjoin the executive branch from carrying out its surveillance program, the one in which the feds monitor the telephone conversations of certain Americans without a court order or any other independent safeguard against abuse. Such a ruling would immediately be appealed and might take the fast-track to the United States Supreme Court. And it would significantly impact the other controversial government effort to collect and analyze massive amounts of telephone records to discern potential communication patterns between terror suspects.

More hearings will be held July 10. The ACLU says (received by e-mail, will be online soon):

The American Civil Liberties Union and the ACLU of Michigan appeared in federal court today to argue that the Bush administration's warrantless spying program is unconstitutional and should be stopped. This was the first time a court heard arguments on the legality of the National Security Agency program.

"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."

As for the arguments:

Representing a host of prominent journalists, scholars, attorneys and national nonprofit organizations who say that the NSA program is disrupting their ability to communicate effectively with sources and clients, the ACLU charged that the program violates Americans' rights to free speech and privacy under the First and Fourth Amendments of the Constitution. By circumventing the Foreign Intelligence Surveillance Act, the ACLU argued that the program violates separation of powers principles and encroaches on Congress' power to regulate the president's authority to spy on Americans. FISA, which was passed by Congress in 1978, requires the executive branch to obtain a warrant before engaging in electronic surveillance of Americans.

...."The government is trying to shut this case down, without any legal review, because it simply knows that this program is illegal," said Kary L. Moss, Executive Director of the ACLU of Michigan. "To avoid any oversight, the government is trying to hide behind the once-rare state secrets privilege. Fortunately, everything we need to argue this case is already available in the public domain."

More on the ACLU case is available here.

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    Slightly off-topic but this is worth a mention...
    PROVIDENCE -- The Rhode Island General Assembly is considering legislation that could give police access to Internet and phone records and credit card and bank information without a warrant or other court review, civil libertarians said.
    Emphasis mine... It is incredible how eager state legislators are quick to cut constitutional corners. This quote from a state police officer is troubling to say the least...
    State police say going before a judge to get a warrant can be time-consuming and cumbersome. Cpl. John Killian, the state police's computer crime specialist, said it can take three to four hours of work to obtain a warrant.

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