Monday, June 12, 2006

NSA spying goes to court

Today a judge will hear arguments in an ACLU lawsuit against the NSA's warrantless eavesdropping program.

The suit in Detroit, like one filed in New York by the Center for Constitutional Rights, asserts that the NSA's eavesdropping program has violated free-speech and privacy rights and has had a chilling effect on the communications of potential surveillance targets.

The major problem with this suit will be the Catch-22 of "standing". Before a plaintiff can sue, they usually have to show that they were affected by the behavior in question, or that they're otherwise qualified to speak for affected parties.

The problem is that the NSA (for obvious reasons) has refused to say who it is monitoring. So a judge may dismiss the suit because the ACLU cannot show it is affected.

The ACLU is trying to get around that by saying the mere existence of the program affects it:

None of the plaintiffs have offered proof they were spied on. Rather, they maintain that the simple existence of the program has impeded their ability to perform their jobs as journalists and lawyers.

"The program is causing concrete and specific injury to plaintiffs and others," the ACLU said in a motion in March, asking U.S. District Judge Anna Diggs Taylor to declare the program illegal and to order its immediate halt.

A brief by Ann Beeson and other ACLU attorneys said the program was disrupting plaintiffs' ability "to talk with sources, locate witnesses, conduct scholarship, engage in advocacy and engage in other activity protected by the 1st Amendment."

The ACLU attorneys contend that because President Bush and several Cabinet members, including Atty. Gen. Alberto R. Gonzales, have publicly acknowledged the existence of the program, Taylor has sufficient evidence to rule on the legality of the program without further fact-finding.

It's worth a try. It seems to me, though, that in important cases like this there should be available a broader form of standing, one that allows a court opinion to be rendered without requiring proof that the plaintiff has been specifically targeted. It would be a class-action suit of sorts, following the logic that "we're all affected by this program, either directly or indirectly, so we all have standing to question it."

Meanwhile, Arlen Specter is keeping the issue alive in Congress, threatening to subpoena phone company executives if the administration doesn't start cooperating.

"If we don't get some results, I'm prepared to go back to demand hearings and issue subpoenas if necessary," Pennsylvania Sen. Arlen Specter told CNN's "Late Edition."

Tough words, and it goes nicely with his assertion that there is "no doubt" the program violates FISA -- which should be blindingly obvious. I approve of his proposed solution: that Bush let the FISA court decide if the program is constitutional. That addresses both security and constitutionality concerns.

But since Bush has not traditionally liked restrictions on his ability to do as he pleases, and since he has asserted the "inherent authority" to conduct such surveillance, I don't expect him to suddenly submit to the judiciary's authority.

If that happens, I expect Specter and others in Congress to hold the administration accountable. The country is not served by Congress rolling over, or shrugging and saying "well, we tried." One way or another, the legality of the NSA program needs to be settled. And if the administration is unwilling to cooperate in that endeavor, then it is time for Congress and the courts to exercise their constitutional obligations and begin acting like the "checks and balances" they were designed to be.

Update: The Washington Post covers the hearing.

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Anonymous Clint said...

Unfortunately, I have doubts that much will come of this legal action by the ACLU. Their case is hurt by the fact they are not directly affected by the surveillance and, as you pointed out, Bush will certainly not yield to FISA. So far, Congress has shown a tremendous penchant for letting the administration get away with murder.

6/12/2006 3:00 PM  
Blogger Sean Aqui said...

It's not just this Congress. Congress has been more or less supine in the face of growing executive power for decades. The current situation is made worse by the fact that the same party controls both Congress and the presidency, but it's not like previous Congresses were brave upholders of Congressional prerogatives.

This suit may go nowhere. But we need to keep plinking away at this until either Congress takes notice (and we have at least the hope of that in the Specter hearings) or we establish another way to challenge what the government does in secret.

6/12/2006 4:44 PM  
Anonymous Clint said...

Yes, you're quite right about Congress' long-term habit of not standing up to executive power.

The suit is definitely another step in the right direction. I think there needs to be more citizen involvement in issues like these. Until there is a wide-spread public outrage, Congress will not necessarily have incentive to curb measures like these, though it'd be nice if they were doing that all along.

6/13/2006 2:51 PM  

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