ACLU Won't Quit Fight over Eavesdropping
RENEE MONTAGNE, host:
The Bush administration is asking a federal court in Cincinnati to dismiss a lawsuit against the terrorism surveillance program. That's the eavesdropping program that generated so much controversy about a year ago, when the administration acknowledged it was tapping domestic communications without the usual court orders. The revelation triggered dozens of lawsuits, but now the government argues the issue is moot.
NPR's Martin Kaste reports from Cincinnati.
MARTIN KASTE: Two weeks ago, Attorney General Alberto Gonzales told the Senate that the eavesdropping program will now fall under the authority of the special secret court set up in the 1970s by the Foreign Intelligence Surveillance Act, or FISA.
But that doesn't satisfy the critics. Ann Beeson is an attorney for the American Civil Liberties Union. The problem, she says, is that the attorney general is submitting to the authority of the FISA court voluntarily.
Ms. ANN BEESON (Attorney, American Civil Liberties Union): He should not be the one that gets to decide when he follows the laws.
KASTE: Beeson was in Cincinnati yesterday trying to save the ACLU's lawsuit over the surveillance program. She scored a victory last summer when a federal judge in Detroit ruled the warrantless wiretapping unconstitutional and ordered it shut down. That case is on appeal, but now the government has moved to dismiss it all together in part because of Gonzales' statement. The government says the issue is now moot, but Beeson says no, it's not. Not as long as the attorney general still believes in principle that the executive branch can tap phones without a warrant.
Ms. BEESON: It's not even a matter of hoping that he won't go outside again. It's that he has himself claimed the right to violate the law again whenever he sees fit.
KASTE: Inside the courtroom, the three-judge panel seemed to sympathize with this concern. Judge Ronald Gilman pressed the government's lawyer, Gregory Garre, on this very point.
Judge RONALD GILMAN (Sixth Circuit Court, Cincinnati): Your position is still is that the conduct use of the government under in the TSP program was perfectly legal, right? And the president have the authority on his own to do it.
Mr. GREGORY GARRE (Attorney): Absolutely.
Justice GILLMAN: That's still your position today.
Mr. GARRE: That's our position today and the (unintelligible)…
Justice GILMAN: You can opt out of the FISA regime whenever you decide to, couldn't you?
Mr. GARRE: That's absolutely true, your honor.
KASTE: In fact, distrust of the administration's motives is running high in Congress too. The Senate Judiciary Committee has been pressuring Gonzales to be more forthcoming about just what sort of oversight the FISA court is exercising.
Yesterday, he agreed to supply Congress with more details in secret. Victoria Toensing, a former Reagan Justice Department official sympathetic to Gonzales, says this level of skepticism is uncalled for, especially now that the FISA judges have been brought in.
Ms. VICTORIA TOENSING (Former Justice Department Official): We have a situation here now where you have not just the executive branch saying trust us, you now have the judges having oversight.
KASTE: And Toensing says the ACLU's lawsuit encroaches too far on the government's long established right to keep state secrets.
Ms. TOENSING: If you take the ACLU argument and extend it, it would mean that the government could never do anything that was classified or out of the public's domain, because how could anybody ever trust the government?
KASTE: Constitutional scholars watching the ACLU case say the government is actually in a strong position. Douglas Kmiec, a law professor at Pepperdine, says even if the appeals court doesn't declare the case moot, it may throw it out on other grounds, such as the state's secrets privilege. He says that's probably the right legal decision but…
Professor DOUGLAS KMIEC (Law, Pepperdine University): That doesn't mean the issue should go away.
KASTE: Kmiec says the question of whether to update the executive branch's surveillance powers in an age of high-tech data gathering is still something that needs to be addressed by Congress.
Martin Kaste, NPR News, Cincinnati.
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