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Battle over wiretaps to begin today DAVID ASHENFELTER / Detroit Free Press | June 12 2006 The opening salvo of what is sure to be a closely watched and potentially landmark case over whether the U.S. government has the right to eavesdrop on thousands -- and potentially millions -- of telephone and e-mail communications will be fired in federal court in Detroit today. The American Civil Liberties Union, which filed the lawsuit in January, will ask U.S. District Judge Anna Diggs Taylor to abolish the Bush administration's program of intercepting international phone calls in its fight against terrorism, saying it violates Americans' free speech and privacy rights. The Justice Department, which represents the National Security Agency, is expected to argue that the program is legal and a key weapon in the administration's war on terror. Although neither side expects Taylor to rule today, courtroom observers said she might reveal hints on how she will decide the case. "Perhaps no other government action poses more of a threat to our democracy than spying on Americans' telephone calls without first obtaining a court order," Michigan ACLU lawyer Michael Steinberg said Friday. He will be on hand when national ACLU lawyer Ann Beeson argues the case. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., said that he will force the executives of telephone companies that have given their customers' phone records to the government to testify about the eavesdropping program if the Bush administration doesn't fully cooperate with drafting new rules on what's allowed. "If we don't get some results, I'm prepared to go back to demand hearings and issue subpoenas if necessary," Specter said Sunday on CNN's "Late Edition." Specter said he was more hopeful, after talking Thursday with Vice President Dick Cheney, that committee hearings and subpoenas can be avoided. Specter had threatened to subpoena executives of major phone companies to get them to testify about their cooperation with the NSA. But one company lawyer has told Specter the executives wouldn't be able to testify about any classified information. Cheney indicated he was willing to work with Congress on new rules governing eavesdropping, but he stopped short of promising any action and said a final decision on the bill would be up to President George W. Bush. Meanwhile, U.S. Justice Department spokesman Charles Miller said department lawyers will attend today's hearing in Detroit, but it's unclear what they might say. He said they expect Judge Taylor to review secret documents they filed recently to persuade Taylor to allow the program to proceed. The ACLU sued the NSA on Jan. 17 on behalf of itself and a group of journalists, scholars, lawyers and national nonprofit groups whose members often communicate with people in the Middle East and Asia by telephone and e-mail. The ACLU alleges that the program has had a chilling effect on plaintiffs' ability to confer with sources, conduct research and engage in other activities. The Center for Constitutional Rights in New York filed a similar suit in U.S. District Court in Manhattan the same day the ACLU filed in Detroit. No hearings have been scheduled in that suit. The New York Times disclosed the program in December, triggering protests from civil liberties groups, as well as opposition from liberals and conservatives. The newspaper reported that the NSA had eavesdropped on international telephone and e-mail conversations involving suspected terrorists without obtaining warrants from the Foreign Intelligence Surveillance Court, a secret court in Washington, D.C. The ACLU charges that the NSA has been sifting through millions of calls and e-mails of ordinary Americans without any probable cause. On May 11, USA Today reported AT&T, Verizon and BellSouth had disclosed phone records to the NSA without customer or court approval to aid the administration's war on terror. Bush, who authorized the program after the Sept. 11, 2001, terrorist attacks, has insisted that the program is legal and vital to national interests. He says Congress authorized the program after the terrorist attacks when it passed a resolution granting him the power to fight terrorism. Administration officials have said the program targets people they suspect of having contact with members of Al Qaeda, not ordinary Americans. The plaintiffs have offered no proof that they were spied upon, but said the government probably had listened in on confidential conversations between lawyers and clients, and researchers and reporters, or researchers and their information sources. In March, the ACLU asked Taylor to summarily rule in the ACLU's favor on the grounds that the program violates federal law. Although the government never filed a formal answer to the ACLU complaint, it asked Taylor in late May to dismiss the ACLU suit, invoking a military and state secrets privilege. It says the ACLU can't proceed unless the government divulges information that would compromise national security. The government also filed secret information in hopes of persuading Taylor to side with the government. Taylor denied the Justice Department's request to postpone a decision on the ACLU's motion to summarily rule against the government. Even though the government hasn't filed a formal answer to the complaint, she said it could attend today's hearing and argue its case. Taylor has allowed several individuals and groups -- including the National Association for the Advancement of Colored People, the American-Arab Anti-Discrimination Committee, the Asian American Legal Defense and members of Congress -- to file briefs on the case. Taylor, 74, a senior judge who handles half the caseload of a regular judge, was appointed in 1979 by President Jimmy Carter. Lawyers described her as smart, fair and liberal. As a black woman who lived through the civil rights struggles of the 1960s, they said she likely will be skeptical of government assurances that the program operates within the law. ---------------------------------------------------
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