CINCINNATI — One of the Bush administration's most controversial initiatives in the war on terrorism is set for its first hearing in a federal appeals court in Cincinnati today, but if government lawyers have their way, the case will quickly be dismissed.
Justice Department attorneys contend that the challenge by the American Civil Liberties Union to the government's warrantless domestic surveillance program is moot because the program is now being monitored by a special court. They are asking that the ruling saying the program is unconstitutional be thrown out.
But ACLU lawyers say the case is still viable and are calling on the U.S. 6th Circuit Court of Appeals to affirm U.S. District Judge Anna Diggs Taylor's ruling in August that the Terrorist Surveillance Program violated the 1st and 4th amendments to the Constitution and ran afoul of the Foreign Intelligence Surveillance Act.
Each side has described the case in stark terms.
The government lawyers, led by Solicitor General Paul D. Clement, say in their brief that "this case presents issues of the gravest order to the nation." If the appeals court construed FISA to prohibit the surveillance program, "it would be an unconstitutional encroachment on the executive's constitutional authority (and duty) to gather foreign intelligence, defend the nation against attack, and command the armed forces during wartime," the brief says.
The ACLU says in its brief that the case raises the fundamental questions of "whether the president has the authority to violate statutory law and the Constitution by engaging in warrantless wiretapping inside the United States. The district court correctly held that he does not."
The case stems from a program the Bush administration started after the Sept. 11, 2001, terrorist attacks. National Security Agency personnel listen in on phone calls and obtain e-mails into and out of the U.S. involving individuals suspected of being affiliated with terrorists.
Until very recently, the program bypassed the Foreign Intelligence Surveillance Court, which was created by Congress in 1978 after revelations of government abuses.
From 1978 through 2004, this court, made up of judges from around the country, rejected only four out of nearly 19,000 surveillance requests. The Bush administration nevertheless concluded that getting the court's approval limited its flexibility in looking for terrorists.
On Jan. 17, just two weeks before the government's appeal was to be heard in Cincinnati, Atty. Gen. Alberto R. Gonzales disclosed that the panel of judges overseeing the Foreign Intelligence Surveillance Act had started reviewing and approving government requests to spy on people thought to have ties to Al Qaeda.
Consequently, the government said the court challenge "no longer has any live significance."
At the same time, Justice Department lawyers said they were not backing away from their fundamental position: that the president has the "inherent authority" as the nation's commander in chief to conduct such surveillance activities.
ACLU attorney Ann Beeson countered that the government's failure to concede that point means that the case is still very much alive. "The government cannot have it both ways," Beeson wrote in a brief filed Friday. "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."
Before Gonzales' announcement, friend-of-the-court briefs had been filed supporting both positions.
Leading constitutional scholars, the Los Angeles County Bar Assn., the Reporters Committee for Freedom of the Press and several other organizations lodged papers in support of the ACLU. The Center for Security Policy, the Committee on the Present Danger, Judicial Watch and several other groups submitted briefs in support of the administration.
"Article II of the Constitution commands the president to respond to attacks against the nation from foreign aggressors.... This plenary authority to wage war includes the authority to gather intelligence concerning enemy activity," wrote attorney Andrew G. McBride in one of the pro-government friend-of-the-court briefs.
But a brief written by Stanford constitutional law professor Kathleen M. Sullivan says the government had gone much too far. "Whatever inherent powers the president might have under Article II [of the Constitution], they do not include the power to conduct a warrantless domestic surveillance campaign, of indefinite duration and unlimited scope, where a duly enacted statute expressly prohibits such conduct," Sullivan wrote.
A panel of three federal appellate judges -- one appointed by a Democratic president and two by Republican presidents -- are to hear the case.
Legal scholars are divided in predicting how the panel will approach the case, but some say the government appears to be facing more sympathetic jurists in Cincinnati than it did in Detroit before Judge Taylor, a liberal who came out of the civil rights movement.
In fact, the government has been unusually critical of Taylor in its briefs, saying she handled the case in a "heavy-handed" and "blunderbuss" fashion.
As is the custom, Taylor, an appointee of President Carter, has not commented on those characterizations. In her opinion in August, she specifically rejected the contention that the president had inherent authority to create a surveillance program that would not be subject to judicial scrutiny. "There are no hereditary kings in America and no powers not created by the Constitution," Taylor said in her 44-page decision.