The National Security Agency's surveillance program faces its first major court test today before a veteran federal judge in Detroit.
In January, the American Civil Liberties Union, the Michigan branch of the Council on American-Islamic Relations and several individuals, who said they feared the government was spying on them, filed a 60-page lawsuit seeking to have the warrantless wiretapping program declared unconstitutional.
The NSA launched the program after the Sept. 11 attacks. It permits the agency to listen in on phone calls and obtain e-mails if one party is outside the U.S. The program also allows the agency to conduct these actions without seeking the permission of the Foreign Intelligence Surveillance Court - created in the aftermath of government spying scandals revealed in the 1970s - to approve warrants in some intelligence and terrorism related investigations.
The suit in Detroit, like a similar suit filed in New York by the Center for Constitutional Rights, asserts that the NSA's eavesdropping program has violated free speech and privacy rights, and had a chilling effect on telephone and e-mail conversations with individuals who may be targets of the surveillance.
None of the plaintiffs has offered proof that they were spied upon. Rather they maintain that the mere existence of the program has impaired their ability to perform their jobs as journalists and lawyers.
"The program is causing concrete and specific injury to plaintiffs and others," the ACLU said in a motion filed in March, asking U.S. District Judge Anna Diggs Taylor to declare the program illegal and order an immediate halt to it.
A brief by Ann Beeson and other ACLU attorneys said it was disrupting the ability of the plaintiffs to talk with sources, locate witnesses, conduct scholarship, engage in advocacy and "other activity protected by the First Amendment."
The ACLU attorneys contend that since President Bush has publicly acknowledged the existence of the program, as have several other members of his Cabinet, including Attorney General Alberto R. Gonzales, there is sufficient evidence for Taylor to make a ruling on the legality of the program without doing any further fact-finding.
The Justice Department sharply disagrees and is attempting to have the cases in Detroit and New York dismissed on the grounds that they violate the "state secrets" doctrine.
First recognized by the Supreme Court 53 years ago, the state secrets privilege bars disclosure of information in court proceedings when "there is a reasonable danger that compulsion of the evidence will expose matters which, in the interest of national security, should not be divulged."
The privilege has been used most often by officials in the executive branch of government, said William G. Weaver, an attorney and political science professor at the University of Texas, El Paso and co-author of a scholarly article on the subject.
"It is the most powerful privilege available to the president," Weaver said. "If it is properly invoked, it wins every single time."
Before the Sept. 11 attacks, Weaver said, government lawyers generally used the privilege at the instigation of midlevel officials who did not want the details of a particular program to be revealed. In recent years though, he said, it has become "a top-down enterprise. The privilege has been transformed into a political device to protect the president from embarrassment."
On May 26, Justice Department attorneys, led by Andrew H. Tannenbaum, filed a motion urging Taylor not to consider the plaintiffs' motion.
The government lawyers maintain in court papers that the NSA program is "essential to meeting a continuing and grave foreign terrorist threat" and is "well within lawful bounds" and that the plaintiffs had no standing to bring the case because they had not demonstrated any injury from the NSA program.
On May 31, Taylor rebuffed the government's contention that she had to consider the "state secrets" issue before considering anything else. She said she would consider the ACLU's motion today and scheduled a July 10 hearing on the government's motion.
Justice Department lawyers filed a new motion June 2 asking the judge to clarify her order and to once again consider their arguments on standing and state secrets before considering any other issue. Taylor is expected to respond at today's hearing.
If the plaintiffs overcome the government's argument, it will be highly unusual. Justice Department attorneys almost always prevail when they invoke the "state secrets" privilege, even when judges acknowledge that a plaintiff has raised serious issues.
Henry Weinstein writes for the Los Angeles Times