ACLU Sues to Stop Illegal Spying on Americans, Saying President Is Not Above the Law
In December 2005, The New York Times reported that President Bush had secretly authorized the National Security Agency (NSA) to intercept the calls and e-mails of people in the United States without a warrant or any prior judicial approval, and without probable cause to believe the target of the surveillance was a terrorist, a spy, or had committed a crime.
The president had authorized the NSA's warrantless surveillance in the fall of 2001 despite the existence of two statutes – Title III and the Foreign Intelligence Surveillance Act (FISA) – which detailed the rules the executive branch must follow in conducting electronic surveillance. These statutes make it a crime to conduct surveillance outside of those laws. FISA governs surveillance even in times of war and emergency, and was passed in the wake of Watergate in part to ensure that the executive branch would not intercept the communications of people within the United States without court approval.
Since disclosure of the NSA surveillance program, senior government officials have admitted that the NSA is conducting electronic surveillance in violation of FISA. But they insist that the president has the inherent authority to ignore FISA if he believes that national security requires it.
On January 17, 2006, the ACLU filed a lawsuit in Michigan on behalf of prominent journalists, scholars, attorneys, and national nonprofit organizations whose work requires them to communicate by telephone and e-mail with people outside the United States, including people in the Middle East and Asia. The government responded to the lawsuit by arguing that the case should be dismissed under the state secrets privilege, meaning the program was so secret and so sensitive that not even a federal court could review what was happening and whether it violated the law.
On August 17, 2006, the district court refused to dismiss the challenge to the wiretapping program under the state secrets privilege, and ruled that the program violated FISA, the separation of powers, and the Fourth and First Amendments to the Constitution. The government has appealed the ruling.
The appeals were heard on January 31, 2007, before Judges Alice Batchelder, Ronald Gilman and Julia Gibbons of the Sixth Circuit Court of Appeals in Cincinnati. Ann Beeson, ACLU Associate Legal Director and Director of Programs on National Security and Human Rights, argued on behalf of the plaintiffs. Douglas Letter, Department of Justice Terrorism Litigation Counsel, argued on behalf of the government. THE ACLU v. NSA LAWSUIT
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> Resources More information on the case is online at www.aclu.org/nsaspying
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