ACLU Urges Supreme Court to Review NSA Warrantless Wiretapping Case

October 3, 2007 12:00 am

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WASHINGTON – The American Civil Liberties Union today urged the U.S. Supreme Court to review a legal challenge to the Bush administration’s warrantless surveillance activities. The case was filed on behalf of prominent journalists, scholars, attorneys and national advocacy organizations charging that the government’s illegal surveillance activities disrupt their ability to communicate effectively with sources and clients. Although the groups submitted uncontested evidence that the government’s illegal surveillance activities had compromised their ability to do their jobs, an appeals court dismissed the case last July because the plaintiffs could not state with certainty that they had been wiretapped by the National Security Agency.

“Innocent people who are harmed by illegal government surveillance should be able to challenge that surveillance in court,” said Jameel Jaffer, Director of the ACLU’s National Security Project. “It should not be left to executive branch officials alone to determine what limits apply to government surveillance and whether those limits are being honored.”

A federal district court sided with the ACLU on August 17, 2006, ruling that warrantless wiretapping by the National Security Agency violated Americans’ rights to free speech and privacy under the First and Fourth Amendments of the Constitution, ran counter to the Foreign Intelligence Surveillance Act (FISA) passed by Congress, and violated the principle of separation of powers. The court rejected the government’s argument that the president has the authority to ignore laws that regulate his ability to collect intelligence. Stating that there are “no hereditary kings in America and no power not created by the Constitution,” Judge Anna Diggs Taylor ordered the president to shut down the illegal program and to comply with the law.

The Bush administration appealed the ruling, and a three-judge panel of the Sixth Circuit Court of Appeals dismissed the case last July. However, the court did not uphold the legality of the government’s warrantless surveillance activity and the only judge to discuss the merits of the case clearly and unequivocally declared that the warrantless surveillance was unlawful.

“The president has claimed the power to disregard any law that, in his view, infringes on his ability to collect intelligence,” said Steven R. Shapiro, National Legal Director of the ACLU. “The government should not be able to avoid scrutiny of its surveillance activities simply by refusing to identify the victims of its unlawful behavior.”

Beginning in 2001, President Bush secretly authorized the National Security Agency to conduct electronic surveillance of people within the United States, including U.S. citizens, without a warrant. In August of 2007, Congress granted the Bush administration broad new surveillance powers in the so-called Protect America Act. In doing so, Congress ratified a program that is even more expansive than the one challenged by the ACLU’s lawsuit. However, the current law sunsets in February 2008. In the meantime, the ACLU is fighting all efforts to allow spying on Americans without warrants and is working to get Congress to put the judicial checks promised in the Fourth Amendment back into FISA.

In a related effort, the ACLU filed a motion with the Foreign Intelligence Surveillance Court (FISC) in August requesting the disclosure of its recent legal opinions concerning the scope of the government’s authority to engage in secret wiretapping of Americans. The secret court, in an unprecedented order, instructed the government to respond to the ACLU’s motion. In its response, the Bush administration argued that the secret court does not have the jurisdiction to consider the ACLU’s request at all and that the FISC should defer to the government’s determination that the rulings must be kept secret in their entirety. All briefs have been filed and a ruling on the ACLU’s motion is forthcoming.

The ACLU’s Supreme Court cert petition is available online at:

More information about the ACLU’s lawsuit against the NSA, a copy of the FISA court order, the ACLU’s motion to the FISA court, the government’s response and other related materials are available online at:

Attorneys on the NSA case are Jaffer, Shapiro, and Melissa Goodman of the national ACLU; Michael Steinberg and Kary Moss of the ACLU of Michigan; and Randy Gainer and Kristina Bennard of Seattle law firm Davis Wright Tremaine. The lawsuit names as defendants the NSA and Lieutenant General Keith B. Alexander, Director of the NSA.

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