ACLU Urges Federal Court to End NSA Spying Program

June 6, 2006 12:00 am

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Attorneys, Journalists Say Program Impeding their Work; Court to Hear Arguments in Landmark Case June 12

DETROIT — In legal papers filed in federal court, the American Civil Liberties Union said the Bush administration’s warrantless wiretapping program runs roughshod over the constitutional rights of U.S. residents and impedes the work of journalists and attorneys.

“Under the Constitution, the president simply has no power to break the law,” said ACLU Associate Legal Director Ann Beeson. “The illegal surveillance of Americans is an affront to our democracy and must be stopped immediately.”

The ACLU submitted its latest legal memorandum late last night asking a Detroit court to find the National Security Agency’s surveillance program unconstitutional and in violation of the Foreign Intelligence Surveillance Act (FISA). The memorandum is the latest step in the ACLU’s landmark lawsuit filed on January 17 in U.S. District Court in the Eastern District of Michigan.

Oral arguments on the constitutionality of the NSA spying program are scheduled for June 12 before Judge Anna Diggs Taylor in Detroit. The hearing will mark the first time a federal court will hear arguments about the legality of the spying program. In an order issued May 31, Judge Taylor postponed until July 10 any argument on the government’s request to dismiss the case on state secrets grounds. The judge noted that the government had not bothered to submit briefs on the legality of the program, but said it would allow them to present arguments on June 12 “if they appear.”

The ACLU memorandum details the negative effects the ongoing surveillance program has had on Americans who must communicate with individuals in the Middle East, Africa and Asia for their work. According to the memorandum, the NSA program has caused important sources to stop communicating with the plaintiffs in the lawsuit out of fear that their communications will be intercepted.

An affidavit submitted by ethics expert Leonard Niehoff, an adjunct professor at the University of Michigan law school, points out that the NSA program “creates an overwhelming, if not insurmountable, obstacle to effective and ethical representation” because it requires the attorneys to cease using phone or e-mail to talk to their clients or obtain necessary evidence. That forces the attorneys to resort “to alternative means for gathering information that, at best, will work clumsily and inefficiently and, at worst, will not work at all.”

The ACLU further charged that the program violates Americans’ rights to free speech and privacy under the First and Fourth Amendments of the Constitution. The ACLU argues that the program also violates separation of powers principles by encroaching on Congress’ power to regulate the president’s authority to spy on Americans.

The government has conceded that the program authorizes warrantless electronic surveillance of Americans that Congress expressly prohibited under FISA, which is “the exclusive means by which electronic surveillance. . . and the interception of domestic wire, oral, and electronic communications may be conducted.” According to the ACLU, since 1978, the FISA court has considered some 20,000 surveillance applications and has rejected only four.

The government has argued that the court needs more details about the precise parameters of the program and the scope of the al Qaeda threat to decide the case. But the ACLU said that Congress included specific procedures under FISA that apply during wars or emergencies – all of which the president declined to follow. “More details about exactly how the president directed the NSA to break the law are irrelevant,” said the ACLU in its memorandum.

The ACLU also announced today that it has filed formal comments reminding the Federal Communications Commission of allegations that AT&T and BellSouth illegally provided customer information to the NSA, and pointing out that under existing law the FCC cannot permit the pending merger between those two companies to proceed without investigating the merit of those allegations. ACLU affiliates in 20 states have also filed complaints with Public Utility Commissions or sent letters to state Attorneys General and other officials demanding investigations into whether local telecommunications companies allowed the NSA to spy on their customers.

In addition to the ACLU, the plaintiffs in the 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 National Association of Criminal Defense Lawyers, Greenpeace and Council on American Islamic Relations, who joined the lawsuit on behalf of their staff and membership.

Attorneys in the case are Beeson, Jameel Jaffer, Melissa Goodman and Scott Michelman of the national ACLU, and Michael Steinberg and Kary Moss of the ACLU of Michigan.

The ACLU legal memorandum is online at

The affidavit submitted by Leonard Niehoff is online at

For more information on the lawsuit, including the 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

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