[Infowarrior] - WH Argues in Support of Warrantless Wiretaps

[Richard Forno]

Bush Administration Argues in Support of Warrantless Wiretaps

By Dan Eggen
Washington Post Staff Writer
Thursday, January 25, 2007; 5:50 PM
http://www.washingtonpost.com/wp-dyn/content/article/2007/01/25/AR2007012501
434.html

The Bush administration argued in court papers filed today that both a
lawsuit and a ruling challenging the constitutionality of its warrantless
surveillance program should be thrown out because the government is now
conducting the wiretaps under the authority of a secret intelligence court.

In a filing with the 6th Circuit U.S. Court of Appeals in Cincinnati,
Justice Department lawyers argue that the lawsuit by the American Civil
Liberties Union and other plaintiffs should be considered moot because the
case "no longer has any live significance."
    
The ACLU said the government's claims have no merit and it plans to file a
response to the arguments Friday.

The brief represents the latest volley in the legal battle over the
controversial spying effort run by the National Security Agency that was
dubbed the "Terrorist Surveillance Program," or TSP, by the Bush
administration.

The program allowed the NSA to monitor telephone calls without warrants
between the United States and overseas if the government concluded that one
of the parties was linked to al-Qaeda. Civil-liberties groups and many
lawmakers condemned the program as an illegal exercise of presidential
power.

Attorney General Alberto R. Gonzales announced last week that the government
was disbanding the program and replacing it with a new effort that will be
supervised by a secret 11-judge panel that oversees clandestine spying in
the United States, known as the Foreign Intelligence Surveillance Act, or
FISA, court.

The government argues that the new arrangement essentially invalidates an
August ruling in the ACLU case by U.S. District Judge Anna Diggs Taylor of
Detroit, who declared the surveillance program unconstitutional and said it
violated free-speech rights and the separation of powers between the three
branches of government.

Taylor ordered a halt to the program, and the government appealed to the 6th
Circuit. The administration says that Taylor's ruling should be vacated and
the entire lawsuit should be dismissed.

"Plaintiffs' challenge to the TSP is now moot," the government wrote in its
filing. "The surveillance activity they challenge . . . does not exist. And
the specific relief they sought and were awarded -- injunction of the TSP --
cannot redress any claimed injury because no electronic surveillance is
being conducted under the TSP."

But Ann Beeson, the ACLU's associate legal director, said the Justice
Department's theory is "not plausible," arguing that legal precedents make
clear that the government cannot escape a legal judgment merely by
voluntarily stopping illegal activity.

"The FISA court didn't reach out on its own to do something; the government
asked it to do something," Beeson said. "And absent a ruling, they are free
to return to their illegal conduct again. This does not meet the mootness
test."