Court hears arguments on wiretap program

A lawyer for the American Civil Liberties Union urged a federal appeals court on Wednesday to affirm a lower-court decision that the Bush administration’s Terrorist Surveillance Program was illegal and show “the president that he has to obey the law.”

But a Justice Department lawyer maintained that the program was legal and called on the judges to overturn the ruling, while also arguing that the case was now moot.

A three-judge panel of the U.S. 6th Circuit Court of Appeals peppered the attorneys with questions about broad constitutional principles as well as the issue of whether the ACLU’s clients had legal standing to challenge the program.

In a related development in Washington, the administration agreed Wednesday to turn over to Congress classified documents related to the surveillance program.

At the hearing in Cincinnati, Justice Department attorney Gregory Garre said that when Congress authorized the use of military force after the Sept. 11 attacks, it clearly contemplated that the president would have the authority to conduct counterintelligence surveillance of the type used in the program. Garre said it would be unprecedented for a U.S. court to say that a president did not have such power.

In August, U.S. District Judge Anna Diggs Taylor ruled in Detroit that the warrantless domestic surveillance program violated the 1st and 4th amendments to the Constitution and ran afoul of the Foreign Intelligence Surveillance Act. That law was created in 1978 in response to revelations about illegal government surveillance of hundreds of Americans, including the Rev. Martin Luther King Jr.

ACLU attorney Ann Beeson said that the administration’s post-Sept. 11 surveillance program clearly violated FISA, which requires a warrant to be issued before surveillance is conducted.

She told the judges that if they accepted Garre’s argument, it would, in effect, mean that the FISA law had been overridden without Congress saying that it wished to do so. “To rule for the government” in this case would mean “the president has unbridled power,” Beeson told the judges.

“Congress did its part,” by passing the FISA statute, Beeson said. Now, after the government acted in “direct violation” of FISA for more than four years, she said, “it is this court’s duty to serve as a check on the arbitrary exercise of government power to wiretap American citizens on American soil.”

She also asked the court to unseal secret documents the government had filed in the case.

Garre asserted though that the case was moot now because of the Jan. 17 announcement by Atty. Gen. Alberto R. Gonzales that the Bush administration had made an agreement with the FISA court to get surveillance warrants there. “We have eliminated the central premise” of the case, Garre said.

At least two of the judges hearing the appeal -- Ronald Lee Gilman, an appointee of President Clinton, and Alice Batchelder, an appointee of the first President Bush -- expressed skepticism about that contention.

“The FISA court didn’t wake up one morning and call -- you went to them,” Batchelder said.

“You could opt out of FISA any time, couldn’t you?” Gilman asked.

“That’s absolutely true,” Garre responded. But he reiterated the central arguments the Justice Department had made since the ACLU filed the suit a year ago on behalf of a group of lawyers, journalists and scholars. He said the suit had to be dismissed because it violated the “state secrets” privilege.

First recognized by the Supreme Court 54 years ago in U.S. vs. Reynolds, the privilege bars disclosure of information in court proceedings when “there is a reasonable danger that the compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.”

The plaintiffs have not been able to demonstrate that the program concretely harmed them, Garre said. They have alleged only “speculative” harm, and that is insufficient to entitle them to sue, he said. Moreover, the only way the plaintiffs could find out whether they had been the targets of wiretapping was if they obtained information about the surveillance program in violation of the state secrets privilege, Garre said.

“Telling our enemies who is subject to surveillance ... would harm national security,” he said.

Beeson countered that Garre had overstated the breadth of the state-secrets privilege, and she maintained that her clients had suffered “concrete harm” by having to forego conversations with individuals who they reasonably believed that might be the targets of surveillance.

She noted, for example, that New Mexico defense lawyer Nancy Hollander had to travel to Africa and the Middle East to do research on behalf of clients -- work she normally could have done through telephone conversations or e-mail.

Beeson said that hundreds of lawyers had to change their behavior as a result of the surveillance program and that this hampered their ability to effectively represent their clients.

The judges did not indicate when they would rule.

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henry.weinstein@latimes.com

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“You could opt out of FISA any time, couldn’t you?”

- U.S. DISTRICT JUDGE RONALD LEE GILMAN

To Justice Department lawyer Gregory Garre