Government Abusing State Secrets Claim in NSA Case, ACLU Tells Court

FOR IMMEDIATE RELEASE
CONTACT: media@aclu.org

DETROIT — The American Civil Liberties Union and the ACLU of Michigan argued in federal court today that the National Security Agency should be held accountable for illegally monitoring the phone calls and e-mails of millions of Americans without warrants.

“The president does not have the authority to decide which laws he will or will not follow,” said ACLU Associate Legal Director Ann Beeson, who argued today’s case before Judge Anna Diggs Taylor. “The courts have repeatedly held that the war on terror is not a blank check to trash the rule of law and the fundamental rights that are the cornerstones of our democracy.”

Throughout today’s hearing, Beeson referenced the recent Supreme Court decision in Hamdan v. Rumsfeld, which reaffirmed that the president does not have unlimited authority to act without Congressional approval during its “war on terror.” The ACLU argues that the Bush administration violated separation of powers principles by encroaching on Congress’ power to regulate the president’s authority to spy on Americans. The Foreign Intelligence Surveillance Act, which was passed by Congress in 1978, requires the executive branch to obtain a warrant before engaging in electronic surveillance of Americans.

The federal government has invoked a legal doctrine known as the “state secrets privilege” in an attempt to dismiss the ACLU lawsuit and others challenging the NSA’s warrantless surveillance program. However, the ACLU said that the government cannot claim that the case involves state secrets because it has already acknowledged and defended the spying program to the public. In fact, on January 19, the Justice Department issued a 40-page White Paper discussing in detail its legal defenses and justifications for the NSA program. President Bush and Vice President Cheney have discussed and promoted the program numerous times at news conferences and other public events.

The ACLU argued that the government is more concerned with avoiding judicial review than protecting state secrets.

“This administration wants to turn the state secrets privilege into an all-purpose weapon the government can use to cover up its own illegal activities,” said Michael J. Steinberg, Legal Director of the ACLU of Michigan. “Our security is at risk when the government tries to erode the system of checks and balances established by America’s founders.”

History has shown that the state secrets privilege has been used illegitimately to cover up wrongdoing. In the 1953 case, United States v. Reynolds, the government had claimed that disclosing a military flight accident report would jeopardize secret military equipment and harm national security. Nearly 50 years later, in 2004, the truth came out: the accident report contained no state secrets, but instead confirmed that the cause of the crash was faulty maintenance of the B-29 fleet.

The ACLU filed its lawsuit in January against the NSA in U.S. District Court, Eastern District of Michigan, on behalf of a group of prominent journalists, scholars, attorneys and national nonprofit organizations who frequently communicate by phone and e-mail with people in the Middle East. The plaintiffs say the NSA program is disrupting their ability to talk with sources, locate witnesses, conduct scholarship and engage in advocacy. The ACLU charges that the NSA program violates Americans’ rights to free speech and privacy under the First and Fourth Amendments of the Constitution.

In a related case, the ACLU of Illinois will appear in federal court in Chicago on Thursday, July 13, to present arguments in its legal challenge to AT&T’s alleged participation in the NSA program. Chicago author Studs Terkel and prominent leaders in the medical, legal, political and faith communities joined the lawsuit charging that AT&T violated their privacy by secretly sharing the telephone records of millions of Americans with the NSA.

The Michigan case is ACLU v. NSA, Docket No. 06-10204. Attorneys in the case are Beeson, Jameel Jaffer, Melissa Goodman and Scott Michelman of the national ACLU, and Kary Moss and Michael Steinberg of the ACLU of Michigan. The Illinois case is Terkel v. AT&T, Docket No. 06-02837.

More information on the lawsuits, including legal documents, fact sheets and statements from the plaintiffs, is online at www.aclu.org/nsaspying.