ACLU Asks Federal Court to Block Illegal Spying Program, Citing “Concrete Harm” to Americans

March 9, 2006 12:00 am

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NEW YORK – Saying that the Bush administration’s warrantless wiretapping of Americans is flatly illegal and unconstitutional, the American Civil Liberties Union today asked a federal court in Detroit to block the program immediately.

The ACLU also criticized Congress for brokering a reported deal that allows the White House to bypass judicial oversight of the controversial program.

“In America, no one is above the law, not even the president,” said ACLU Executive Director Anthony D. Romero. “The president’s allies in Congress are preparing to cover up his illegal program, while others in Congress are standing on the sidelines. When the President breaks the law, Congress should not be giving him a get-out-of-jail free card.”

The NSA spying program, authorized by President Bush just after September 11, 2001, allows the agency to monitor and collect e-mails and phone calls from innocent Americans without ever having to go to a court and prove even the remotest hint of suspicion.

Shortly after the program was exposed by The New York Times last December, the ACLU filed a lawsuit challenging the program on behalf of a group of prominent journalists, nonprofit groups, terrorism experts and community advocates. The ACLU, which is also a client in the lawsuit, charged that the spying violates all Americans’ rights to free speech and privacy under the First and Fourth Amendments of the Constitution.

In legal papers filed today before Judge Anna Diggs Taylor in Detroit, the ACLU pointed further to the “concrete harm” of the illegal spying program to its clients, saying it disrupts their ability to “talk with sources, locate witnesses, conduct scholarship and engage in advocacy.”

“To avoid the giant ear of the NSA, journalists and lawyers now have to make expensive trips overseas to speak with their sources and clients,” said ACLU Associate Legal Director and lead counsel Ann Beeson. “We are asking the court to halt the illegal spying program now to prevent even more harm to the free speech and privacy rights of Americans.”

The need for legal action is even more acute, Beeson noted, after members of Congress announced support yesterday for what amounts to a whitewash of the spying program.

An agreement announced by Republicans on the Senate Select Committee on Intelligence would support legislation allowing the administration to report about the spying program to a smaller group of senators than is required by current federal law. The legislation also would remove prompt judicial oversight of every single intelligence wiretap of Americans, substituting a pre-approved stamp of approval for real judicial review.

Government stonewalling on an ACLU Freedom of Information Act request for details about the spying program continued late yesterday with the release of documents that the ACLU called little more than a rehash of publicly available information. The release did, however include a series of e-mails between a top national security lawyer at the Justice Department and Attorney General Alberto Gonzales, in which the attorney, who has since departed, sharply criticized the government’s rationale for the spying program.

The plaintiffs in the ACLU’s challenge to NSA spying 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, ACLU and Council on American Islamic Relations, which joined the lawsuit on behalf of its staff and membership.

Diamond, McKelvey, and Nancy Hollander and Bill Swor of the National Association of Criminal Defense Lawyers all submitted declarations to the court today describing how the spying program has affected their activities.

The Center for Constitutional Rights is also suing President Bush in federal court, asserting that the program interferes with their ability to represent their clients in numerous challenges to the Bush administration’s practices.

Legal documents, client profiles and other information about the ACLU lawsuit can be found online at

Links to the documents released under the ACLU’s FOIA request about NSA spying are online at,, and

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