Justice Department Tries To Shut Down NSA Case genre: Polispeak & Six Degrees of Speculation

In a continuing attempt to prevent the public from grasping the details of the NSA surveillance program, the Justice Department has asked a judge to dismiss a lawsuit brought by the American Cilvil Liberties Union. Read the full New York Times article here.

DETROIT, June 12 — A National Security Agency program that listens in on international communications involving people in the United States is both vital to national security and permitted by the Constitution, a government lawyer told a judge here today in the first major court argument on the program.

The only solution to this impasse, the lawyer, Anthony J. Coppolino, said, was for Judge Taylor to dismiss the lawsuit before her, an American Civil Liberties Union challenge to the eavesdropping program, under the state secrets privilege. The privilege can limit and even extinguish cases that would reveal national security information, and it is fast becoming one of the Justice Department's favorite tools in defending court challenges to its efforts to combat terrorism.

The actions by the Justice Department lend support to long heald fears associated with attempts to expand executive authority as well as bypass congressional and judicial oversight. The crux of the issue rests in the decision by the Bush administration to conduct surveillance outside of the oversight of the special FISA court which was designed to monitor such activities. Recent discussions involving Senator Arlen Specter have signaled an effort to revise the laws in order to cover the new activities as well as provide amnesty for any potential illegal acts performed under the current NSA programs.

The case boiled down to two legal questions, Ms. Beeson said. The first is whether the plaintiffs have suffered the sort of direct injury necessary to establish that they have standing to bring suit. The second is whether President Bush was authorized by Congress or by the Constitution to violate the Foreign Intelligence Surveillance Act, a 1978 law that forbids surveillance of people inside the United States without a warrant.

The Bush administration has acknowledged that it has not complied with the law but has said that a Congressional authorization in 2001 to use military force against Al Qaeda and the president's inherent constitutional powers allowed him to violate it.

Ms. Beeson said the 1978 law, often called FISA, gave the president all the flexibility he needed. "If FISA didn't work," she said, "the proper procedure under our constitutional system was for the president to go back to Congress and ask it to amend the law."

"Our constitutional system was set up to require the president to follow the law just like anyone else," she added. "If our view of the separation of powers is extreme, then the Constitution is extreme."

Daniel DiRito | June 12, 2006 | 2:00 PM
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