[Infowarrior] - Judges indicate domestic surveillance issue is not closed

[Richard Forno]

udges indicate domestic surveillance issue is not closed
By Adam Liptak
Thursday, February 1, 2007
CINCINNATI
http://www.iht.com/articles/2007/02/01/news/spy.php

Three federal judges hearing the first appellate argument about the legality
of a National Security Agency domestic surveillance program have indicated
that they were not convinced the issue was moot now that the Bush
administration has agreed to submit the program to review by a secret court.

In a series of sharply worded questions to an administration lawyer
defending the program, the judges on Wednesday noted that the administration
did not promise to continue working with the secret court in the future.

"You could opt out at any time, couldn't you?" asked Judge Ronald Gilman of
the 6th U.S. Circuit Court of Appeals.

Gregory Garre, a deputy solicitor general, acknowledged the possibility.

The judges pressed Garre's adversary, Ann Beeson of the American Civil
Liberties Union, just as hard on a different point ‹ whether her clients had
suffered injuries direct and concrete enough to give them standing to sue.

"Explain to me how we get to a finding of standing?" asked Judge Julia
Gibbons.

Gibbons repeated the question in similar form several times.

Beeson said the plaintiffs, who include lawyers and journalists, have had to
change the way they communicate with clients and sources in the Middle East
because they feared that their discussions would not be confidential.

But Gibbons and Judge Alice Batchelder seemed skeptical about whether that
sort of general and speculative fear was sufficient.

The government has refused to say whether it eavesdropped on the plaintiffs.

"Telling our enemies who is the subject of surveillance would reveal
information that could harm the national security," Garre said Wednesday.

The ACLU brought suit last year after The New York Times disclosed the
existence of the program, which monitors the international communications of
people in the United States without court approval.

In August, Judge Anna Diggs Taylor of the U.S. District Court in Detroit
ordered the program shut down. The decision has been suspended during the
appeal to the 6th Circuit.

Gilman raised the possibility that the legality of the program might never
be adjudicated. "If the plaintiffs here don't have standing," he said, "who
would possibly have standing?"

While Garre urged the court to dismiss the case under threshold questions
like mootness and standing, Beeson tried to steer the judges toward its
merits.

"A failure to decide the case will leave it up to the president whether and
when to follow the law," Beeson said.

Over the course of the litigation, the government has refined some of its
arguments.

Early statements from various administration officials appeared to concede
that the program violated the Foreign Intelligence Surveillance Act of 1978.

But the government's appellate filings say that is an open question and one
that cannot be answered without disclosing state secrets.

At several points in the argument, Garre said that the so-called state
secrets privilege was a litigation showstopper.

The privilege requires courts to limit or dismiss cases when allowing them
to proceed would disclose information harmful to national security.

Several courts have ruled, however, that the administration's general
description and defense of the NSA program meant that it was no longer
secret and that questions about its legality could be decided without
raising national security concerns.

Assuming the court finds a path through the thicket of preliminary
objections, it will be left with the question of whether the president was
entitled to ignore the 1978 law when he authorized eavesdropping that
bypassed warrants.

Garre said that a 2001 congressional authorization to use military force
after the Sept. 11, 2001, terrorist attacks overrode the law.

Gilman seemed unconvinced. "I understand your argument," he said.

"I'm not sure I agree with it."

The administration has also said that the president has the constitutional
power, regardless of what Congress has to say, to conduct foreign
intelligence surveillance in wartime.

Taylor's decision striking down the program was sweeping, and her reasoning,
which was in places unorthodox, attracted criticism even from legal scholars
who supported her conclusion.

In its public briefs, the government said Taylor had taken "the
unprecedented step of permanently enjoining a foreign intelligence gathering
program authorized by the commander in chief to protect the nation from
foreign attacks in wartime."

The government has also filed classified versions of its briefs and other
documents, which are available only to the judges.

Batchelder was appointed by President George H.W. Bush, Gilman by President
Bill Clinton, and Gibbons by President George W. Bush.