Federal Judge Hears Arguments on Spy Program

From the New York Times:

A National Security Agency program that listens in on international communications involving people in the United States is both vital to national security and permitted by the Constitution, a government lawyer told a judge here on Monday in the first major court argument on the program.

But, the lawyer went on, "the evidence we need to demonstrate to you that it is lawful cannot be disclosed without that process itself causing grave harm to United States national security."

The only solution to this impasse, the lawyer, Anthony J. Coppolino, said, was for the judge to dismiss the suit before her, an American Civil Liberties Union challenge to the eavesdropping program, under the state secrets privilege. The privilege can short-circuit cases that would reveal national security information, and it is fast becoming one of the Justice Department's favorite tools in defending court challenges to its efforts to combat terrorism.

The Detroit case was filed in January on behalf of journalists, scholars, lawyers and nonprofit organizations who argued that the possibility of government eavesdropping interfered with their work. In remarks to reporters after the 90-minute argument, Anthony D. Romero, the A.C.L.U.'s executive director, called the government's invocation of the state secrets privilege "Orwellian doublespeak."

"They argued essentially that the N.S.A. program was off limits to judicial review," Mr. Romero said.

The small courtroom was jammed for the argument, with a dozen people standing in the aisles and journalists sitting in the jury box.

In her presentation, Ann Beeson, the A.C.L.U.'s associate legal director, asked the judge, Anna Diggs Taylor of Federal District Court, to shut down the surveillance program based on publicly available information.

The case boiled down to two legal questions, Ms. Beeson said. The first is whether the plaintiffs have suffered the sort of direct injury necessary to establish that they have standing to bring suit. The second is whether President Bush was authorized by Congress or by the Constitution to violate the Foreign Intelligence Surveillance Act, a 1978 law that forbids surveillance of people inside the United States without a warrant.

The administration has acknowledged that it has not complied with the law but has said that a 2001 authorization to use military force against Al Qaeda and the president's inherent constitutional powers allowed him to violate it.

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--Tom Hayes