ACLU seeks to revive NSA spying challenge
on Oct 3, 2007 at 12:36 pm
The American Civil Liberties Union asked the Supreme Court on Wednesday to revive its lawsuit seeking to challenge President Bush’s years-long use of warrantless wiretaps to eavesdrop on what officials deemed to be suspicious telephone and e-mail contacts that may involve terrorist suspects. The case against the National Security Agency electronic spying program was dismissed by the Sixth Circuit Court mainly on the theory that the individuals and groups that claimed harm from the surveillance had not offered proof that they were monitored, and could not show that unless they had access to government secret, which was forbidden. The petition in American Civil Liberties Union, et al., v. National Security Agency, et al., can be found here. (PDF required) (Filed Wednesday morning, it has not yet been assigned a docket number.)
The appeal raises both a question of the right to sue, and the more basic constitutional question of the President’s authority to begin and continue such a surveillance program that reaches inside the U.S. The questions presented are:
“1. Whether the Court of Appeals erred in holding that plaintiffs who have been injured because of government surveillance are precluded from challenging the lawfulness of that surveillance if the government refuses to disclose whether plaintiffs’ communications have been intercepted.
“2. Whether the President possesses authority under Article II of the Constitution to engage in intelligence surveillance within the United States that Congress has expressly prohibited.”
On the first issue, the petition argues: “Because the last six years have sseen a dramatic expansion in the government’s surveillance activities, it is critically important for this Court to address the question of who has standing to challenge the lawfulness of government surveillance. There is considerable confusion in the lower courts on this issue. Some courts have applied this Court’s traditional standing rules….Other courts, however, departing from the standing framework that this Court has applied in other contexts, have disregarded evidence of concrete injury and denied standing unless plaintiffs are able to establish with certainty that they have in fact been monitored under the surveillance program they seek to challenge….[T]his showing is often impossible to make because the government refuses, by invoking the state secrets privilege, to confirm or deny whether plaintiffs have been monitored.”
On the second point, the petition notes that President Bush, in defending the program “has claimed the authority to violate any statute if he concludes that it interferes with his power under Article II to protect the nation during a time of war. This dangerous claim — essentially a claim that the President is above the law — should not go unreviewed by this Court.”
Although the ACLU recognizes that the Bush Administration has since gone to a special court, the Foreign Intelligence Surveillance Court (and to Congress) for authorization of at least some form of the NSA electronic spying program, it adds that “the President continues to assert the authority to disregard…at any time” the Foreign Intelligence Surveillance Act, governing secret eavesdropping that touches individuals inside the U.S.
