Even as Republicans in the Senate and the White House work on legislation to supply a new legal basis for the Bush Administration’s “terrorist surveillance program,” two advocacy groups have moved to get prompt rulings in federal courts that the electronic eavesdropping that reaches Americans is invalid — and would be unconstitutional even if a new law were enacted. The maneuver could mean that the controversy would reach the Supreme Court sooner.

The American Civil Liberties Union and the Center for Constitutional Rights, which launched parallel lawsuits against the domestic spying on Jan. 17 in Detroit and New York, on Thursday filed motions for summary judgment in those cases — in other words, motions to get an early ruling on the program as a legal matter, without waiting for a trial to explore the facts of the surveillance. A summary judgment motion could be granted only if there were no dispute over key facts. The two groups are arguing that the Administration’s vigorous public defense of the program and officials’ widespread public discussion of the program’s rationale and scope mean that the essential facts are already clear, and are undisputed. President Bush’s own comments, beginning with his radio address right after the program’s existence was disclosed by The New York Times, form a key part of the factual record, as do statements and testimony from Attorney General Alberto R. Gonzales.

The two groups represent journalists, attorneys and others who have frequent contact by telephone or e-mail with foreign individuals or organizations, and have been forced by revelations of the domestic spying to curtail those contacts, or find more expensive ways to communicate.

The ACLU motion, filed in ACLU, et al., v. National Security Agency, et al. (docket 06-10204) in the Eastern District of Michigan in Detroit, can be found here. The CCR motion, filed in Center for Constitutional Rights, et al., v. Bush, et al. (06-313), can be found here.

The Justice Department has indicated that it will oppose granting summary judgment.

The new motions by the advocacy groups make the argument that the domestic spying program, conducting without court-approved warrants, violate two federal laws, violates separation of powers principles because it exceeds presidential authority and violates limits set by Congress, and violates free speech rights under the First Amendment and privacy rights under the Fourth Amendment.

The filings take little account of the efforts now unfolding in Congress, especially the Senate, to validate the existing program. The CCR brief includes this footnote: “Plaintiffs are aware of news reports that some Senators have discussed legislation that would amend FISA to permit electronic surveillance without a warrant. We cannot speculate about what form any such legislation might take, or whether it will be passed by Congress. We do, however, underscore that the First and Fourth Amendments set limits on government power, whether authorized by Congress or not.” The ACLU brief, in text, makes the same substantive point: “…regardless of whether the program is prohibited or authorized by Congress, any government interception of the private phone calls and emails of Americans must comply with the Fourth and First Amendments.”

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