An attempt to halt the National Security Agency’s controversial domestic surveillance program generated intense legal debate Monday before a veteran federal judge, with opponents branding it a threat to American citizens and defenders contending it is legal and essential to national security.
The case is the first major legal challenge to the warrantless wiretapping program, with the Justice Department squaring off against lawyers representing several groups and individuals that seek to have the program declared unconstitutional.
U.S. District Judge Anna Diggs Taylor, who is expected to be the first to rule on the issue, asked only one question during the hearing and gave no indication of how she would rule or when. It was the second hearing she has held within a month on the complex legal issues surrounding the program.
Taylor has scheduled no further hearings, and told the lawyers she would take the case “under advisement,” meaning that she would weigh their arguments and issue a ruling.
After the program was revealed by the New York Times, the government admitted that it had launched a domestic wiretapping initiative after the Sept. 11 terrorist attacks. NSA personnel listen in on phone calls and obtain e-mails into and out of the U.S. involving suspected terrorist affiliates. The program bypasses the Foreign Intelligence Surveillance Court, created after government spying abuses in the 1970s, that approves search and wiretapping warrants in some intelligence and terrorismrelated investigations.
In January, the American Civil Liberties Union, the Council on American-Islamic Relations, Greenpeace and several individuals, who expressed fear that the government was spying on them, filed a lawsuit here challenging the program. The first hearing before Taylor was June 12.
Similar suits are pending in federal courts in New York, Oregon and Texas but have had no major hearings, and Taylor’s decision could be influential as other jurists consider the issue.
The ACLU filed the suit in Detroit in part because the area has a large Muslim population. One of the plaintiffs Nazih Hassan, of nearby Ypsilanti, is a member of the Council on AmericanIslamic Relations and has said he fears he has been a target of eavesdropping because he frequently talks with Muslims abroad.
Since the suit was filed, the government has attempted to allay concerns of the area’s Arab Americans. Gen. Michael V. Hayden, the former NSA chief who is now CIA director, has said the program is narrowly tailored toward Al Qaeda and “is not a drift net over Dearborn” or other towns with large Muslim communities.
In court Monday, Justice Department attorney Anthony J. Coppolino urged Taylor, a longtime judge appointed to the federal bench by President Carter, to throw out the case on two grounds. None of the plaintiffs had shown that they had suffered injury and therefore they had no legal standing to sue, he said, and that if Taylor decided the plaintiffs had standing, the case still should be dismissed because of the “state secrets” doctrine.
The “state secrets” privilege, laid out in a Supreme Court decision in 1953, prohibits disclosure of information in legal proceedings when there is “a reasonable danger” that the evidence would “expose military matters which, in the interest of national security, should not be divulged.”
That is clearly the issue in this instance, Coppolino said, because the case involves a challenge to an “ongoing program” of surveillance against Al Qaeda that is integral to the Bush administration’s war on terrorism.
He said President Bush had the authority to launch the program after Sept. 11 because of his inherent authority and because of the authorization for use of military force issued by Congress after those attacks.
Because of the program’s nature, Coppolino said, the government cannot disclose whether it is conducting surveillance on any of the plaintiffs, including the American-Islamic group; James Bamford, author of two books on the NSA; or Noel Saleh, a Detroit lawyer frequently involved in civil liberties cases. Coppolino said that if the government revealed whether it was or was not spying on a particular individual or group it could harm the entire program.
Among rulings he cited to support his arguments was a 1978 decision by the federal appeals court in Washington that upheld the dismissal of a case alleging that the government had spied illegally on opponents of the Vietnam War.
That decision said that by revealing whether “internal communications” had or had not been intercepted, “the individual himself and any foreign organization with which he has communicated would know what circuits were used.
“Further,” the court said, “any foreign government or organization that has dealt with a plaintiff whose communications are known to have been acquired would at the very least be alerted that its communications might have been compromised or that it is a target.”
Coppolino said the government could not “reveal even innocuous sounding information” about the NSA surveillance program because it might give Al Qaeda insights into how the program was run, putting the nation further at risk.
ACLU attorney Ann Beeson said the government’s position was so expansive that it “would preclude judicial review in every case where the president chose to ignore Congress whenever he wants to wiretap Americans.”
She said government officials had revealed sufficient information about the program that the judge could rule without further fact-finding. That is crucial to the ACLU’s argument because it would give the judge an opportunity to rule without delving into the program’s inner workings, avoiding the risk of revelations government officials say would harm the country.
Beeson said the June 29 Supreme Court decision that Bush did not have the power to set up special military trials at Guantanamo Bay, Cuba, without the approval of Congress should leave no doubt that there were limits on presidential power in military affairs. In that 5-3 decision, the high court rejected Bush’s claim that the commander in chief can make the rules during an unconventional war.
“It is hard to fathom how the subject matter of this case could be a ‘state secret,’ ” Beeson said, given how much energy administration officials have put into publicly defending it.
She said her clients, who include scholars, journalists and lawyers, had suffered “real injuries” because the NSA program had impeded their ability to do research, e-mail people in foreign countries and engage in other activities protected by the 1st Amendment. She said some attorneys representing suspected terrorists had to make “expensive trips” abroad because their ability to communicate with people by phone or computer had been impeded by the surveillance program.
Outside court, Beeson said that she hoped the judge would rule soon, and that she was concerned that the government was invoking the “state secrets” doctrine more and more.
“It was intended to be a shield” to protect a limited amount of information and “they are attempting to turn it into a sword” to scuttle lawsuits challenging government power, Beeson said.
Dawud Walid, executive director of the Michigan chapter of the Council on American-Islamic Relations, said he was troubled that Bush administration officials talked about exporting democracy but were “trying to circumvent democratic processes” at home.
Asked why government officials should have to go to court to get a warrant before wiretapping, Walid replied: “We have a president, not a king.”