Spy program focus of hearing

U.S. will ask court to dismiss case on domestic wiretapping

January 31, 2007|By LOS ANGELES TIMES

CINCINNATI -- One of the Bush administration's most controversial initiatives in the war on terrorism is set for its first hearing in a federal appeals court today, but if government lawyers have their way the case will quickly be dismissed.

Justice Department attorneys contend that the challenge by the American Civil Liberties Union to the government's warrantless domestic surveillance program is moot since the program is now being monitored by a special court. They are asking that the ruling that the program is unconstitutional be thrown out.

But ACLU lawyers maintain that the case is still viable and are calling on the 6th Circuit Court of Appeals to affirm Judge Ella Diggs Taylor's ruling in August that the Terrorist Surveillance Program violated the First and Fourth Amendments to the Constitution and ran afoul of the Foreign Intelligence Surveillance Act.

Each side has described the case in stark terms.

The government lawyers, led by Solicitor General Paul D. Clement, say in their brief that "this case presents issues of the gravest order to the nation."

The ACLU says in its brief that the case raises the fundamental questions of "whether the president has the authority to violate statutory law and the Constitution by engaging in warrantless wiretapping inside the United States. The district court correctly held that he does not."

The case stems from a program the Bush administration started after the Sept. 11, 2001, terrorist attacks. National Security Agency personnel listen in on phone calls and obtain e-mails into and out of the U.S. involving individuals the government suspects of being affiliated with terrorists.

Until very recently, the program bypassed the Foreign Intelligence Surveillance Court, which was created by Congress in 1978 after revelations of government abuses.

From 1978 through 2004, that court, made up of judges from around the country, rejected only four out of nearly 19,000 surveillance requests. The Bush administration concluded that getting such approval limited its flexibility in looking for terrorists.

On Jan. 17, Attorney General Alberto R. Gonzales disclosed that the panel of judges who oversee the Foreign Intelligence Surveillance Act had started reviewing and approving government requests to spy on people thought to have ties to al-Qaida.

Consequently, the government said the court challenge "no longer has any live significance."

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