Domestic Spying Program Comes Under Legal Scrutiny

The National Security Agency’s controversial domestic surveillance program faces its first major court test today before a veteran federal judge in Detroit.

In January, groups including the American Civil Liberties Union and the Michigan branch of the Council on American-Islamic Relations as well as 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. Among the individuals is James Bamford, author of two books on the NSA.

Under the program, launched after the Sept. 11 terrorist attacks, the NSA listens in on phone calls and obtains e-mails into and out of the U.S. involving suspected terrorist affiliates. The program bypasses the Foreign Intelligence Surveillance Court, which was created after government spying scandals in the 1970s to approve warrants in some intelligence- and terrorism-related investigations.

The suit in Detroit, like one 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 has had a chilling effect on the communications of potential surveillance targets.

None of the plaintiffs have offered proof they were spied on. Rather, they maintain that the simple existence of the program has impeded 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 in March, asking U.S. District Judge Anna Diggs Taylor to declare the program illegal and to order its immediate halt.

A brief by Ann Beeson and other ACLU attorneys said the program was disrupting plaintiffs’ ability “to talk with sources, locate witnesses, conduct scholarship, engage in advocacy and engage in other activity protected by the 1st Amendment.”

The ACLU attorneys contend that because President Bush and several Cabinet members, including Atty. Gen. Alberto R. Gonzales, have publicly acknowledged the existence of the program, Taylor has sufficient evidence to rule on the legality of the program without further fact-finding.

The Justice Department sharply disagrees and seeks dismissal of the cases in Detroit and New York on the grounds that they violate the “state secrets” doctrine.

First recognized by the Supreme Court 53 years ago in U.S. vs. Reynolds, the “state secrets” privilege bars disclosure of information in court proceedings when “there is a reasonable danger that compulsion of the evidence will expose military 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 a political science professor at the University of Texas, El Paso, who has co-written 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 mid-level officials who did not want a program’s operational details revealed.

In recent years, though, it has become “a top-down enterprise,” he said. “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 to not even 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,” 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 a plaintiff raises serious issues.

Last month, U.S. District Judge T.S. Ellis III in Alexandria, Va., dismissed a lawsuit filed by a German citizen who alleged he was kidnapped and beaten by the CIA.

Khaled El-Masri sued former CIA Director George J. Tenet, other officials and three private companies. The suit alleged that Tenet violated U.S. and international human rights laws by permitting agents to kidnap El-Masri in Macedonia in 2003, beat him, drug him and transport him to a secret CIA prison in Afghanistan.

Five months later, according to the suit, El-Masri was released at night in Albania without being charged with a crime.

Ellis said that “if El-Masri’s allegations are true or essentially true, then all fair-minded people, including those who believe that state secrets must be protected ... must also agree that El-Masri has suffered injuries as a result of our country’s mistake and deserves a remedy.”

Nonetheless, Ellis sided with government attorneys, saying that if the case went forward it “would present a grave risk of injury to national security.”

“El-Masri’s private interests must give way to the national interest,” he ruled.

“In times of war,” he said, “our country, chiefly through the executive branch, must often take exceptional steps to thwart the enemy.”