The US government defended warrantless domestic surveillance in court for the first time today, saying the programme is well within the president’s authority but arguing that it would require revealing state secrets to prove that point.
US District Judge Anna Diggs Taylor in Detroit heard arguments in a case brought by the American Civil Liberties Union against the National Security Agency. The ACLU is asking for an immediate halt to the programme, arguing that it violates the rights to free speech and privacy.
The Bush administration has asked Taylor to dismiss the lawsuit on state-secrets grounds.
The ACLU says the Bush administration already has publicly revealed enough information about the programme for Taylor to rule it is illegal.
But government attorney Anthony Coppolino told Taylor today that the case cannot be decided based on a “scant public record”.
“This case does not involve easy questions,” he said. “It’s a case that involves a robust factual record.”
Coppolino alluded several times to a classified court filing, which Taylor indicated she had not yet reviewed. In that brief, “we demonstrate that it (the programme) is narrowly and specifically focused on al-Qaida,” he said.
The plaintiffs do not have access to the classified brief, and Taylor would have to make a special request and travel to Washington to read it, said Ann Beeson, the ACLU’s associate legal director and the lead attorney for the plaintiffs.
The administration has acknowledged eavesdropping on Americans’ international communications without first seeking court approval. President George Bush has said the eavesdropping is legal because of a congressional resolution passed after the September 11, 2001, attacks that authorised him to use force in the fight against terrorism.
The parties in the ACLU lawsuit, who include journalists, scholars and lawyers, say the programme has hampered their ability to do their jobs because it has made international contacts, such as sources and potential witnesses, wary of sharing information over the phone.
Today’s hearing was the first time the issues were argued in court. A similar lawsuit has filed in federal court in New York by the Centre for Constitutional Rights, but no hearings have been held there yet.