The American Civil Liberties Union asked a federal appeals court on Friday to force out into the open at least some of the records that could reveal how far the secret Foreign Intelligence Surveillance Court has gone to authorize eavesdropping on individuals inside the U.S. when they communicate via telephone, e-mail or other electronic connections. In a motion to unseal filed with the Sixth Circuit Court in Cincinnati, the ACLU argued that the federal government had improperly classified at least some of the documents the Justice Department filed under seal on Jan. 11 and on Wednesday. “The government’s improper secret filings constitute an abuse of this Court’s process and unwarrantedly deprive the public of its right of access to information concerning judicial proceedings,” the liberal advocacy group said in the motion.

The “Terrorist Surveillance Program” at issue, begun some five years ago in secret, involves the National Security Agency’s monitoring of telephone calls and electronic exchanges of international calls into and out of the U.S., involving at least one person suspected of terrorist activity or links. The Program’s existence became publicly known only when The New York Times revealed it. Until this month, it was conducted only on the basis of presidential authority. Now, the government insists, it is being continued only with the FISA Court’s permission.


The ACLU’s plea to publicly reveal some of the underlying documents on the changed Program came as the two sides in an ongoing court case sparred over whether that case should now be dismissed because the government insists it is no longer conducting that Program without a court’s advance approval. Earlier this month, the Justice Department disclosed publicly that it had gone to the FISA Court and obtained orders that permit the wiretapping that previously had been authorized only by presidential order. The ACLU’s lawsuit, ACLU et al., v. National Security Agency, et al. (Circuit docket 06-2095 and 06-2140), contends that the Program violated federal law and the Constitution because electronic eavesdropping that reaches persons inside the U.S. must be approved in advance by the FISA Court.

On Wednesday, the Justice Department filed a document with the Sixth Circuit, arguing that the FISA Court’s authorizing orders have now undermined the “central premise” of the ACLU claim that the Surveillance Program was invalid because it was not being carried on with court approval. The ACLU, it said, was seeking a remedy that would only apply in the future to end the Program. Thus, the Department contended, there is “no longer any live genuine controversy to adjudicate.” The Sixth Circuit, it asserted, should now dismiss the lawsuit either as moot, or on alternative grounds — the ACLU had no right to bring the case in the first place, or the case cannot proceed without violating the government’s “state secrets privilege.”

The Department first notified the Circuit Court of the FISA Court authorization on Jan. 11, and at that time filed a series of classified documents. Presumably, but not certainly, those documents included the series of authorizing orders that the government has said it obtained from the secret tribunal on Jan. 10. The Department also filed a new round of classified documents with its filing on Wednesday — again, presumably relating to the action of the FISA Court.

The ACLU, in its motion to unseal on Friday, argued that it is unclear from the Justice Department’s public filings in recent days just what is included among the sealed materials. They do relate to the FISA Court’s orders, however, the ACLU contended. It went on to argue that, in its view, the outcome of the case does not depend upon what is in the secret filings. But, if the Court disagrees and finds they do bear on the outcome, the ACLU said, “due process requires that the Court permit” its lawyers access to any parts of the records that were properly classified, with access conditioned on a non-disclosure protective order.

In their opposing arguments on whether the case is now dead because of the intervening action of the FISA Court, the two sides debated whether the government changed its policy on the surveillance activity only to scuttle the lawsuit, and whether that is sufficient to end the case.

The government argued that it has not stopped the surveillance program, but only has switched to do it under the FISA Court’s orders. “The government has in no sense terminated its conduct” as a response to the lawsuit, it added. Moreover, it asserted that there is no predictable prospect that the FISA Court will back out of its authorization or that the President would then reinstitute it under his own authority. Moreover, it added, the Circuit Court should avoid a ruling in the case on the merits, because that would involve exploration of “extremely sensitive constitutional issues” about presidential power.

The ACLU countered that it had asked the government last Monday whether it would formally commit to complying with a federal judge’s ban on the Program when it existed outside the FISA Court’s review. The ACLU indicated it wanted assurances that the government would only spy on domestic callers or e-mailers within the FISA law’s requirements. The government declined to make that promise, the ACLU said, so it “still refuses to abide” by the law governing electronic spying on Americans inside the U.S. The ACLU’s response can be found here.

In its submissions Wednesday, the Justice Department argued that, while the trial judge’s order not to conduct the Program outside of the FISA Court’s reach was now moot, that order should be wiped off the books because it sought to resolve “extraordinarily sensitive questions touching upon issues of statutory construction and constitutional law, separation of powers, and, ultimate, presidential authority in a time of war.” That judge’s order, it asserted, should not be left in place, especially since it is no longer necessary to reach any of those issues in view of the new role of the FISA Court.

The Sixth Circuit so far has not reacted to these new developments. It is still scheduled to go ahead with a hearing on the ACLU’s case next Wednesday. Presumably, the question of the lawsuit’s fate and future potential progress will be explored as part of that hearing.

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