The American Civil Liberties Union asked a federal court Friday to unseal secret documents filed by the Bush administration in support of its warrantless domestic surveillance program.
The administration announced last week that it was suspending the electronic surveillance program and says the ACLU case challenging its constitutionality should therefore be dismissed. It has filed some of its arguments under seal, preventing the ACLU from seeing them.
A hearing on the case is scheduled for Wednesday at the U.S. 6th Circuit Court of Appeals in Cincinnati.
In August, U.S. District Judge Anna Diggs Taylor in Detroit held that the wiretapping program violated the 1st and 4th Amendments, which respectively protect free speech and prohibit unlawful searches.
The government appealed and Taylor's ruling was stayed pending the appeal, which is to be heard by a three-judge panel.
Last week, Atty. Gen. Alberto R. Gonzales announced that the administration had suspended the program. He also announced that the court set up by the Foreign Intelligence Surveillance Act had issued secret orders Jan. 10 approving the surveillance.
Justice Department officials have declined to say whether the FISA court approved a specific warrant or approved the surveillance program in broad terms.
U.S. officials have said that under the secret program, the National Security Agency electronically monitored telephone calls and e-mails between people in the U.S. and those in foreign countries suspected of having ties to terrorist organizations.
On Thursday, Justice Department attorneys filed a motion at the 6th Circuit, asking the court to drop further consideration of the case.
The lawsuit "no longer has any live significance," said a brief filed by six department attorneys led by Solicitor General Paul D. Clement.
"The surveillance activity they challenge ... does not exist. And the specific relief they sought and were awarded ... cannot redress any claimed injury because no electronic surveillance is being conducted under the [Terrorist Surveillance Program]."
The Justice Department also said that the secret intelligence court was reviewing the program and that it would oppose release of the Jan. 10 authorization order. "The long-standing practice is that FISA court orders remain classified and not subject to public dissemination," the Justice Department said in its brief.
ACLU attorneys, led by Associate Legal Director Ann Beeson, emphasized in their filing Friday that President Bush still claimed he retained the "inherent authority" to engage in wiretapping without FISA court oversight.
"Presumably to protect that supposed power, the government has declined to stipulate that it will comply with the district court's injunction in this case, which merely requires the government to comply with FISA," Beeson wrote. "Moreover, while a judge on the Foreign Intelligence Surveillance Court has apparently approved some form of the government's spying program, the government has refused to disclose the [FISA] judge's orders. Whatever those orders do, they do nothing to resolve the ultimate issue in this case: whether the president may lawfully conduct electronic surveillance outside of FISA.
"The government cannot have it both ways," Beeson wrote. "It cannot argue that the case is moot because the government is currently in compliance with FISA, and at the same time expressly retain the authority to violate FISA tomorrow. Because nothing prevents the government from ignoring FISA's requirements after the threat of this litigation has passed, the government has failed to satisfy its heavy burden of showing that this case is moot," Beeson added.
In addition, Beeson wrote that without more information about what the FISA court had authorized, there was no means of determining whether the National Security Agency's current activities were lawful.
Twice in the last week, the government informed the ACLU that it had filed secret material in the case, disclosing only that it bore on the case. On Friday, Beeson asserted that those materials were improperly classified and should be made available to the ACLU in order to give the organization an adequate opportunity to respond.
"Recognition of the 1st Amendment right of access is of particular importance" in this case "because of the extraordinary public interest, and significance of, the issues presented in this appeal," Beeson wrote. "The secrecy surrounding the FISA judge's Jan. 10 orders, and the government's continued assertion of authority to disregard FISA and the Constitution, have only deepened public interest and concern."
Along the same line, the ranking Republican on the Senate Judiciary Committee, Arlen Specter of Pennsylvania, sent a letter Friday to Gonzales asking for a meeting on the issue and expressing "deep concern ... about extraordinary procedures taken by the Department of Justice in the 6th Circuit" and in another case involving the Terrorist Surveillance Program pending in U.S. District Court in Portland.
"The Department of Justice may have a conflict of interest in limiting access to key evidence on national security grounds as a means of controlling the outcome of these cases and obstructing the federal courts in their adjudications," Specter said in the letter.