CINCINNATI — A lawyer for the American Civil Liberties Union urged a federal appeals court on Wednesday to affirm a lower-court decision that the Bush administration's Terrorist Surveillance Program was illegal and show "the president that he has to obey the law."
But a Justice Department lawyer maintained that the program was legal and called on the judges to overturn the ruling, while also arguing that the case was now moot.
For The Record
Los Angeles Times Sunday February 04, 2007 Home Edition Main News Part A Page 2 National Desk 1 inches; 42 words Type of Material: Correction
Wiretap hearing: An article in Thursday's Section A about a federal appeals court review of the Bush administration's Terrorist Surveillance Program included a pull-quote attributed to U.S. District Judge Ronald Lee Gilman. He is on the U.S. 6th Circuit Court of Appeals.
A three-judge panel of the U.S. 6th Circuit Court of Appeals peppered the attorneys with questions about broad constitutional principles as well as the issue of whether the ACLU's clients had legal standing to challenge the program.
In a related development in Washington, the administration agreed Wednesday to turn over to Congress classified documents related to the surveillance program.
At the hearing in Cincinnati, Justice Department attorney Gregory Garre said that when Congress authorized the use of military force after the Sept. 11 attacks, it clearly contemplated that the president would have the authority to conduct counterintelligence surveillance of the type used in the program. Garre said it would be unprecedented for a U.S. court to say that a president did not have such power.
In August, U.S. District Judge Anna Diggs Taylor ruled in Detroit that the warrantless domestic surveillance program violated the 1st and 4th amendments to the Constitution and ran afoul of the Foreign Intelligence Surveillance Act. That law was created in 1978 in response to revelations about illegal government surveillance of hundreds of Americans, including the Rev. Martin Luther King Jr.
ACLU attorney Ann Beeson said that the administration's post-Sept. 11 surveillance program clearly violated FISA, which requires a warrant to be issued before surveillance is conducted.
She told the judges that if they accepted Garre's argument, it would, in effect, mean that the FISA law had been overridden without Congress saying that it wished to do so. "To rule for the government" in this case would mean "the president has unbridled power," Beeson told the judges.
"Congress did its part," by passing the FISA statute, Beeson said. Now, after the government acted in "direct violation" of FISA for more than four years, she said, "it is this court's duty to serve as a check on the arbitrary exercise of government power to wiretap American citizens on American soil."
