Government defends domestic spying in court in Detroit

SARAH KARUSH / AP | June 12 2006

DETROIT - The government defended warrantless domestic surveillance in court for the first time Monday, saying the program is well within the president's authority but proving that would require revealing state secrets.

U.S. District Judge Anna Diggs Taylor in Detroit heard arguments in a case brought by the American Civil Liberties Union against the National Security Agency. The ACLU is asking for an immediate halt to the program, arguing that it violates the rights to free speech and privacy.

Taylor gave no indication of when she might rule. A hearing on a government motion to dismiss the lawsuit because of state secrets is scheduled for July 10.

The ACLU says the state-secrets argument is irrelevant because the Bush administration already has publicly revealed enough information about the program for Taylor to rule.

But government attorney Anthony J. Coppolino told Taylor on Monday that the case cannot be decided based on a "scant public record."

"This case does not involve easy questions," he said. "It's a case that requires a robust factual record."

Coppolino alluded several times to a classified court filing, which Taylor indicated she had not yet reviewed. In that brief, "we demonstrate that it (the program) is narrowly and specifically focused on al-Qaida," he said.

The plaintiffs do not have access to the classified brief, and Taylor would have to make a special request and travel to Washington to read it, said Ann Beeson, the ACLU's associate legal director and the lead attorney for the plaintiffs.

The administration has acknowledged eavesdropping on Americans' international communications without first seeking court approval. President Bush has said the eavesdropping is legal because of a congressional resolution passed after the Sept. 11, 2001, attacks that authorized him to use force in the fight against terrorism.

The ACLU's clients include journalists, scholars and lawyers, who say the program has hampered their ability to do their jobs because it has made international contacts, such as sources and potential witnesses, wary of sharing information over the phone.

The plaintiffs concede they don't know whether or not their calls and e-mails have been monitored. But they believe they are among the likely targets because of their activities - for example, writing about security or defending people accused of terrorism.

Coppolino said that belief was insufficient to establish that the plaintiffs have been directly affected by the program.

"You don't get standing by saying the president has a program, and I'm concerned it might cover me," he told Taylor.

But Kary Moss, executive director of the ACLU's Michigan branch, said the government's logic put the plaintiffs in "an Alice in Wonderland situation."

"On the one hand, the government is saying: 'You have to show your clients have been targeted.' They're also saying: 'We're not gonna tell you whether or not they've been targeted,'" she told reporters after the hearing.

Detroit attorney Noel Saleh, a plaintiff in the case and president of the Arab Community Center for Economic and Social Services in Dearborn, said he was disturbed by the idea that his conversations with clients might not be private.

"We're not arguing that the administration - the executive office - doesn't have the power to protect us by spying," he said. "What we're arguing is that they don't have the power to protect us by violating the Constitution."

The ACLU argues that the 1978 Foreign Intelligence Surveillance Act, which set up a secret court to grant wiretap warrants, provides the president with adequate leeway. Under the law, the government can wiretap without a warrant for up to 72 hours in an emergency before seeking retroactive approval.

Monday's hearing was the first time the issues were argued in court. A similar lawsuit has been filed in federal court in New York by the Center for Constitutional Rights, but no hearings have been held there yet.

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