Thoughts on ACLU v. NSA

I am a trial lawyer by profession and understand that lawyers are supposed to represent clients with whom they do not always agree. Indeed, I was at one time a government lawyer and defended state actions and policies with which I personally disagreed. That is what we do. That is what we are supposed to do. I understand and accept that. That is the way our legal system is supposed to work.

But on Wednesday January 31, in a federal court in Cincinnati, listening to an argument before the U.S. Court of Appeals in a case entitled ACLU v. NSA, I found myself responding with anxiety, dismay and outrage as I listened to a lawyer from the U.S. Department of Justice, MY Department of Justice, defend the President’s secret and illegal Terrorist Surveillance Program. Even though I as a lawyer am supposed to be detached from these things, I found myself taking it personally, as personally as if I was had been the subject of secret eavesdropping by the government. Because I heard the government, MY government, argue to that court that no one had a right to challenge the legality and constitutionality of the President’s secret surveillance program.

Listening to the argument of the Department of Justice was much like reading Alice in Wonderland. You see, it is the position of the Department that (1) no person can challenge the government surveillance program unless they can prove they were the subject of surveillance, (2) the government will not tell you if you were surveilled and the court has no power to require it to do so, (3) even if you were surveilled the court has no legal right to review the legality of the program because the decision of whether the program is warranted and legal is exclusively within the authority of the President. And all of that is justified, according to the Department of Justice, to fight the so-called “war on terror.”

James Madison, architect of the U.S. Constitution, co-author of the Federalist Papers and later President wrote: “If tyranny and oppression come to this land it will be in the guise of fighting a foreign enemy.” The statement is as true today as it was 200 years ago.

Frankly, it is all chilling. And all reminiscent of the abuses of the CIA, NSA and FBI during the fight for civil rights, the opposition to the Vietnam War and the Watergate cover-ups in the 1960’s and 1970’s. I had thought we had put this all behind us. Apparently not.

Madison also wrote: “The accumulation of all powers, legislative, executive and judicial in the same hands, whether one or many … may justly be pronounced the very definition of tyranny.”

Let’s hope the Court of Appeals agrees.