ACLU Sues to Stop Illegal Spying on Americans, Saying President Is Not Above the Law

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Prominent Journalists, Nonprofit Groups, Terrorism Experts and Community Advocates Join First Lawsuit to Challenge New NSA Spying Program

NEW YORK – Saying that the Bush administration’s illegal spying on Americans must end, the American Civil Liberties Union today filed a first-of-its-kind lawsuit against the National Security Agency seeking to stop a secret electronic surveillance program that has been in place since shortly after September 11, 2001. 

“President Bush may believe he can authorize spying on Americans without judicial or Congressional approval, but this program is illegal and we intend to put a stop to it,” said ACLU Executive Director Anthony D. Romero. “The current surveillance of Americans is a chilling assertion of presidential power that has not been seen since the days of Richard Nixon.”

The lawsuit was filed on behalf of a group of prominent journalists, scholars, attorneys, and national nonprofit organizations (including the ACLU) who frequently communicate by phone and e-mail with people in the Middle East.  Because of the nature of their calls and e-mails, they believe their communications are being intercepted by the NSA under the spying program.  The program is disrupting their ability to talk with sources, locate witnesses, conduct scholarship, and engage in advocacy.  The program, which was first disclosed by The New York Times on December 16, has sparked national and international furor and has been condemned by lawmakers across the political spectrum.  

In addition to the ACLU, the plaintiffs in today’s case are: 

Authors and journalists James Bamford, Christopher Hitchens and Tara McKelvey

Afghanistan scholar Barnett Rubin of New York University’s Center on International Cooperation and democracy scholar Larry Diamond, a fellow at the Hoover Institution

Nonprofit advocacy groups NACDL, Greenpeace, and Council on American Islamic Relations, who joined the lawsuit on behalf of their staff and membership

"The prohibition against government eavesdropping on American citizens is well-established and crystal clear,” said ACLU Associate Legal Director Ann Beeson, who is lead counsel in ACLU v. NSA.  “President Bush's claim that he is not bound by the law is simply astounding. Our democratic system depends on the rule of law, and not even the president can issue illegal orders that violate Constitutional principles.”

According to news reports, President Bush signed an order in 2002 allowing the NSA to monitor the telephone and e-mail communications of "hundreds, perhaps thousands, of people inside the United States" with persons abroad, without a court order as the law requires.  Under the program, the NSA is also engaging in wholesale datamining by sifting through millions of calls and e-mails of ordinary Americans. 

Journalist James Bamford, a plaintiff and one of the world’s leading experts on U.S. intelligence and the National Security Agency, said that “the spying program removes a necessary firewall that would prevent the kind of government abuse seen during the Watergate scandal.” Bamford was threatened with prosecution in the 1970s as he prepared to disclose unclassified details about illegal NSA spying on Americans in his book, The Puzzle Palace.

In the legal complaint filed, the ACLU said the spying program violates Americans’ rights to free speech and privacy under the First and Fourth Amendments of the Constitution. 

The ACLU also charged that the program violates the Constitution because President Bush exceeded his authority under separation of powers principles.  Congress has enacted two statutes, the Foreign Intelligence Surveillance Act and Title III of the federal criminal code, which are “the exclusive means by which electronic surveillance. . . and the interception of domestic wire, oral, and electronic communications may be conducted.”   

The lawsuit, filed in U.S. District Court in the Eastern District of Michigan, seeks a court order declaring that the NSA spying is illegal and ordering its immediate and permanent halt.  Attorneys in the case are Beeson, Jameel Jaffer, and Melissa Goodman of the national ACLU Foundation, and Michael Steinberg of the ACLU of Michigan.The lawsuit names as defendants the NSA and Lieutenant General Keith B. Alexander, the current the Director of the NSA. 

For more information on the lawsuit, including the legal complaint, fact sheets on the case law and on the NSA spying program, and links to statements from the plaintiffs in the lawsuit, please go to www.aclu.org/nsaspying