Court Hears Arguments on Legality of NSA Spying Program for the First Time Ever

June 12, 2006

ACLU says, "No One is Above the Law, Not Even the President"

DETROIT — The American Civil Liberties Union and the ACLU of Michigan appeared in federal court today to argue that the Bush administration's warrantless spying program is unconstitutional and should be stopped. This was the first time a court heard arguments on the legality of the National Security Agency program.

“Under our Constitution, no one is above the law, not even the President,” said Ann Beeson, Associate Legal Director of the ACLU national office, who argued today’s case.  “The government’s arguments that the president, alone, can decide to spy on Americans without a warrant are fundamentally un-American and contradict the vision of the founders of our democracy.”

However, the government argued that ACLU’s defense of the constitution and checks on presidential power were “extreme.” In response, Beeson said, “If our view of the separation of powers is extreme, than the Constitution is extreme.”

Representing a host of prominent journalists, scholars, attorneys and national nonprofit organizations, who say that the NSA program is disrupting their ability to communicate effectively with sources and clients, the ACLU charged that the program violates Americans' rights to free speech and privacy under the First and Fourth Amendments of the Constitution. By circumventing the Foreign Intelligence Surveillance Act, the ACLU argued that the program violates separation of powers principles by encroaching on Congress' power to regulate the president's authority to spy on Americans. FISA, which was passed by Congress in 1978, requires the executive branch to obtain a warrant before engaging in electronic surveillance of Americans.

“The government today repeated its Orwellian argument that national security prevents any judge from reviewing the legality of the NSA program,” said Anthony D. Romero, Executive Director of the ACLU.  “The spying program has no oversight or checks and balances and seemingly no limits.  This means that the government can not only monitor any Americans’ phone calls or e-mails, but can even search their homes and businesses without a warrant.”

The ACLU filed the lawsuit in January against the NSA in the U.S. District Court, Eastern District of Michigan. Following today’s arguments on the legality of the program, Judge Anna Diggs Taylor has scheduled a second hearing on July 10 on the government's request to dismiss the case on state secrets grounds.

“The government is trying to shut this case down, without any legal review, because it simply knows that this program is illegal,” said Kary L. Moss, Executive Director of the ACLU of Michigan. “To avoid any oversight, the government is trying to hide behind the once-rare state secrets privilege. Fortunately, everything we need to argue this case is already available in the public domain.”

In addition, the ACLU recently filed formal comments reminding the Federal Communications Commission of allegations that AT&T and BellSouth illegally provided customer information to the NSA, and pointing out that under existing law the FCC cannot permit the pending merger between those two companies to proceed without investigating the merit of those allegations. ACLU affiliates in 20 states have also filed complaints with Public Utility Commissions or sent letters to state Attorneys General and other officials demanding investigations into whether local telecommunications companies allowed the NSA to spy on their customers.

Attorneys in the case are Beeson, Jameel Jaffer, Melissa Goodman and Scott Michelman of the national ACLU, and Moss and Michael Steinberg of the ACLU of Michigan.

Background on the case, including profiles of the plaintiffs is online at www.aclu.org/nsaspying

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