Judge may decide if eavesdropping is legal

Reuters
Judge may decide if eavesdropping is legal
By Daniel Trotta

NEW YORK (Reuters) - The National Security Agency's domestic spying program faces its first legal challenge in a case that could decide if the White House is allowed to order eavesdropping without a court order.

Oral arguments are set for Monday at U.S. District Court in Detroit at which the American Civil Liberties Union will ask Judge Anna Diggs Taylor to declare the spying unconstitutional and order it halted.

The case goes to the heart of the larger national debate about whether President Bush has assumed too much power in his declared war on terrorism.

Bush said he authorized NSA intercepts soon after the September 11 attacks, allowing the NSA to monitor the international phone calls and e-mails of U.S. citizens without first obtaining warrants if in pursuit of al Qaeda suspects.

The ACLU sued the NSA on behalf of scholars, journalists and attorneys, claiming that warrantless wiretaps violate the U.S. Constitution and the Foreign Intelligence Surveillance Act of 1978, or FISA.

"The NSA has the capability of eavesdropping on anyone, anywhere, anytime," said James Bamford, an NSA expert and author who is supporting the ACLU suit.

Justice Department lawyers have asked the judge to dismiss the suit because it would reveal state secrets.

Regardless of how the judge rules on state secrets, the government lawyers say Congress granted Bush surveillance privileges by authorizing the use of force against al Qaeda following the September 11 attacks, and that he has the inherent right to order the wiretaps under presidential war powers.

"That is a total misunderstanding of the way the separation of powers are supposed to work in our democracy," said Ann Beeson, the lead ACLU lawyer in the case.

"It is very clear that when the framers (of the Constitution) set up the three branches of government they gave Congress the power to regulate what the president can do even during wartime and emergencies. If they hadn't done that we'd be back to the days of King George III," she said.

Some Republicans including Senate Judiciary Committee Chairman Arlen Specter differ with the White House and maintain that the post-September 11 authorization of the use of force did not alter FISA.

The committee is considering several bills that would either tighten or loosen congressional oversight of the NSA.

Verizon Communications and BellSouth Corp. have denied a USA Today report that they gave tens of millions of phone records to the National Security Agency. AT&T Inc., which was also named in the report, has not addressed the issue.