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Details From the Back Row

Christina Drummond,
ACLU of Washingon
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January 31, 2007


Judges Alice Batchelder, Ronald Gilman and Julia Gibbons presided over a full standing-room only court of over 100 people. Mr. Greg Garre, Deputy Solicitor General, argued for the government and Ann Beeson, ACLU’s Associate Legal Director and Director of the National Security and Human Rights programs argued for the lawyer, journalist, and researcher plaintiffs.

The government’s argument was two-fold:
1) jurisdictional issues should sway the Court. Namely: a) that the Plaintiff’s lack standing because they couldn’t prove they were the subject of surveillance and thereby suffered as a result and b) that the entire case was now moot since the TSP was now subject to FISA
2) if the Court didn’t buy the above, then it should agree that the state secrets protection applies and accordingly reverse Taylor’s ruling.

This was the extent of the government’s oral argument – Mr. Garre didn’t address the merits of the case nor Taylor’s finding that the Terrorist Surveillance Program was unconstitutional and needed to be ceased.

Mr. Garre focused most of his argument on how the ACLU’s 1st Amendment argument (re: Plaintiff’s having to change their behavior because of the program) was based on merely the fear of being subject to surveillance – not actual proof of surveillance activity, which could not be disclosed because of state secrets. Judge Gibbons asked for clarification on how other claims of damages fit in, like the damage to research? The government claimed that all other injuries resulted from the fear (not proof) of surveillance, and therefore were irrelevant.

There was a lot of discussion around the applicability of Laird v. Tatum which is something I’m going to let my fellow bloggers write about since I’m not a lawyer. Or you can read the legal brief.

Judge Gibbons asked if this set of Plaintiff’s didn’t have standing; who would. The government clarified their position that the plaintiff must be an actual subject of surveillance in order to have the 4th Amendment argument apply, and since the Plaintiff’s in this case have no proof of being surveilled, the change in their actions based on presumption is not sufficient.

With regards to the moot argument, Judge Gilman noted that the government volunteered to put TSP under FISA, and could similarly opt-out anytime. Judge Batchelder also noted that it was odd that the government voluntarily went to the FISA Court. Judge Gilman pressed for clarification that the government’s position was that they could abandon FISA anytime. Mr. Garre responded, “Absolutely true your honor”, and Judge Gibbons remarked that this could occur in the future should the Executive branch feel the need to conduct surveillance beyond the parameters set by FISA.

On the topic of state secrets, the government claimed that in order to establish whether or not a search was reasonable, you’d have to know details about the search, such as what communications were intercepted, how it was intercepted, and what technology was used. And – you guessed it – that’s a matter of state secrets.

Judge Gilman interestingly remarked that they don’t have to reach 1st/4th Amendment issues if they stop at FISA. Could this perchance indicate a leaning?

In the Government’s final comments before the ACLU took the floor, Mr. Garre emphasized that this case must be viewed with respect to the constitutionality of the President’s powers in wartime – and that it was not possible to resolve the FISA/Separation of Powers issues without getting into state secrets.

More to come…

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