ACLU PREPARING TO ARGUE CASE AGAINST NSA SPYING PROGRAM-Andrew Stelzer

06/06/06

Its been almost 6 months since the New York Times revealed that under the direction of President Bush, the national security agency has been conducting phone and email surveillance on thousands, if not millions of Americans without court approval. As the ACLU prepares to mount the first legal challenge the NSA spying program, they’re having to simultaneously watch legislation in congress that could make the program legal retroactively, and fight the merger of two phone companies who helped the NSA conduct the surveillance program. Ann Beason, the ACLUs associate legal director, will be arguing the case

ACT-Beeson “The problem is that both journalists and attorneys have obligation to change their behavior..for example, journalists sources have said they no longer will give info, also several attorneys have an ethical obligation to not have info disclosed..they’ve had to stop having phone or email conversations with clients….program created immediate and irreconcilable harm..’

Although there are two troublesome aspects to the spying program—the wiretaps and the data mining on phone company records; The ACLU has filed a motion in Federal court related to the wiretaps. The ACLU is asking Judge Anna Diggs Taylor to rule on whether the president violated the Foreign Intelligence Surveillance Act, or FISA.

ACT-Beeson “The government has offered 2 defenses—its in congress authorized when it authorized military force..Congress has said this is not true. Govs other defense is that pres has inherent authority because of his war powers, and we believe that is a total mis-understanding..they gave congress the power, if they hadn’t we would be back to days of king George the III…the framers never wanted to give power to ignore the laws of congress..�

Journalist James Bamford is one of about 10 journalists and attorneys who joined the ACLU lawsuit as a client. He says the President has violated the law, and needs to be held accountable.

ACT-Bamford “Having written two books, I know the potential..I know Nixon, the NSA began eavesdropping…�

ACT-Bamford “For many years, the NSA disobeyed the law…then they went back to days of Nixon

The suit will be heard in Detroit on Monday June 12th. Judge Taylor could rule on the issue of state secrets, she could rule on whether the spying program violates FISA, or she could shoes to wait until after another hearing scheduled for early July, in which the issue of state secrets will be discussed. The Government asked the judge to delay the hearing on the wiretap program until after the state secrets hearing, but the judge rejected that request.

Although the state secrets clause hasn’t been in front of the US supreme county in 50 years, the 1953 case of US vs. Reynolds is the precedent courts have used when hearing cases in which the government has invoked the law. Ann Beeson, the ACLU's associate legal director, said that The ACLU has had at least 2 clients, Sybil Edmunds and Kalid Al-Masri—have their cases against the government dismissed on the precedent set in US vs. Reynolds.

ACT “Reynolds vs. US—family whose loved ones were killed in test plane—gov said state secrets—Supreme Court said you can’t have accident report but you can still try the case. Same family members got hold of report, it turned out the accident report, all it did was confirm that the army had been negligent…�

But Graves says the case being heard later this month can’t be dismissed on the same basis, because the government has already admitted the program exists, and the details of it are irrelevant.

ACT “State secrets is for evidence, it’s not a blanket to prevent litigation..we don’t need it because the pres has already admitted he broke the law…�

Coinciding with this case coming to court is the pending purchase of Bellsouth by AT and T, which the ACLU has filed an objection to with the FCC, in light of the fact that the phone companies have not reveled the level of participation they had in the programs. Barry Steinhart is the director of the ACLU’s technology and liberty project.

ACT-stein � 2 of the companies involved AT & T and bell south are merging…and the question of that merger is before the FCC..so we filed comments asking FCC to investigate whether companies have been complying with the law or turning over provide data to NSA without a court order..FCC has responsibility to determine if it’s in public interest and if they are acting in a lawful way..�

FCC commissioner Kevin Martin responded by saying they could not investigate the issue because it involved state secrets. The 2 phone companies are asking for no hearing, or at the very least a private hearing on the topic, and Lisa Graves—senior counsel for legislative strategy for ACLU, who has been attending hearings about the telecom merger says she’s disturbed by the lack of aggressiveness on the part of congress.

ACT “We continue to see on the hill a lack of subpoenas to back up admins rhetoric..we are hopeful that congress will get documents and they will insist that these are public..the very questions they insisted on getting answers on during church committee�

Meanwhile, there are at least 4 bills being considered in congress related to the surveillance program, some of which, according to Lisa Graves, the ACLU’s senior legislative counsel, would make the entire program legal, and would retroactively make whatever has already happened legal as well. Graves says it’s unclear where the votes are, because everybody is waiting for a thorough investigation of the program that is now under question. But she favors a bill co-sponsored by Senators Arlen Specter and Hillary Clinton.

ACT “The judiciary has no business passing law, until they know what’s going on with program..Patriot Act..promises that were not accurate..’

For more information about the ACLU’s lawsuit and the NSAs surveillance program, log onto www.aclu.org/nsaspying

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