Leading Constitutional Scholars, Civil Rights Organizations, Bar Associations and Reporters' Group Support ACLU Challenge to NSA Warrantless Wiretapping

November 21, 2006 12:00 am

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NEW YORK – The American Civil Liberties Union today announced the filing of five friend-of-the-court briefs in support of its successful challenge to the National Security Agency’s illegal domestic spying program, which the government has appealed. The briefs were submitted on behalf leading constitutional scholars, civil rights organizations, legal experts, bar associations and a reporters’ advocacy group.

“All Americans have the right to speak on the phone or send and receive e-mails without the government eavesdropping on their conversations without a warrant,” said Ann Beeson, Associate Legal Director of the ACLU. ” The broad support for ending this illegal spying program shows just how indefensible the government’s position is.”

Since 2001, the NSA has been secretly intercepting the phone and e-mail communications of Americans without first obtaining judicial approval. Saying that the Bush administration’s illegal spying on Americans must end, the ACLU filed a lawsuit against the NSA in January of this year. On August 17, in the first and only ruling by a federal court to strike down the controversial program, the United States District Court for the Eastern District of Michigan ruled that the warrantless wiretapping program is illegal.

In a brief affirming the landmark ruling, the nation’s leading constitutional law scholars, including Kathleen Sullivan, Laurence H. Tribe, Richard Epstein and Ronald Dworkin said: “Whatever inherent powers the President might have under Article II, 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. Thus, no separation of powers concern requires deference to the Government’s implausible statutory construction. To the contrary, deference to the Government’s position would itself cast doubt on the constitutionality of the statute.”

In another friend-of-the-court brief, civil rights organizations, including National Association for the Advancement of Colored People (NAACP), American-Arab Anti-Discrimination Committee, Asian American Legal Defense and Education Fund, Japanese Americans Citizens League, the League of United Latin American Citizens, and United for Peace and Justice pointed to decades of spying on Americans – including members of their organizations – that was halted only after a congressional investigation in the 1970’s exposed the abuses. Drawing on their shared history, the groups said that “Intelligence agents misused information gained by such surveillance to ‘discredit’ ideas and ‘neutralize the actions’ of Americans engaged in First Amendment-protected speech and advocacy, further distorting the political marketplace of ideas, a marketplace in which the American values of civil rights have historically triumphed.”

The brief signed by the New York City Bar Association, the Bar Association of San Francisco, the Los Angeles County Bar Association, the Boston Bar Association and the Beverly Hills Bar Association discussed the importance of confidential communications and trust in the sacred American value of the privileged attorney client relationship. “The NSA surveillance program threatens to undermine a fundamental principle of a just legal system: That justice requires that persons accused by the government of wrongdoing have access to legal advice and that such legal advice can only be effective if lawyer-client communications are conducted in confidence, uninhibited by fears that government agents are listening in,” the groups said in their brief.

The fourth brief was filed by the Center for National Security Studies and the Constitution Project and concerns the preservation of the Fourth Amendment of the Constitution. “The Fourth Amendment thus undergirds and reinforces FISA’s requirement that the government obtain a warrant in order to engage in foreign intelligence surveillance of persons in the United States. Any concerns potentially counseling against enforcing the warrant requirement in the foreign intelligence realm have been absent for the better part of thirty years, and the threat to individual liberties by an unchecked Executive is, if anything, magnified in the current environment. Accordingly, there is no basis for determining that the President has inherent authority to disregard the warrant requirement enacted by Congress to safeguard the Fourth Amendment rights of persons in the United States.”

The Reporters Committee for Freedom of the Press filed a brief as well, citing concerns that “if any journalist strongly and legitimately suspects that his or her communications with a source are being intercepted by a third party, that journalist simply cannot promise confidentiality in good faith to an international source when that source could face torture or death if the communication is revealed… the program ignores the United States’ long-recognized commitment to the free flow of information and disregards the dangers posed to international sources who communicate with the media about issues of national security.”

The ACLU lawsuit was filed on behalf of a group of prominent journalists, scholars, attorneys, and national nonprofit organizations (including the ACLU) who frequently communicate by phone and e-mail with people in the Middle East. Because of the nature of their calls and e-mails, they believe the program is disrupting their ability to talk with sources, locate witnesses, conduct scholarship and engage in advocacy. The spying program has sparked national and international furor and has been condemned by lawmakers across the political spectrum.

The lawsuit was filed in U.S. District Court in the Eastern District of Michigan, by Beeson, Jameel Jaffer and Melissa Goodman of the national ACLU and Michael Steinberg of the ACLU of Michigan. The civil rights organizations are represented by Jonathan Hafetz of the Brennan Center for Justice. The constitutional scholars brief was written by Kathleen M. Sullivan and Derek L. Shaffer of the Constitutional Law Center at Stanford Law School.

For more information on the lawsuit, including copies of the amicus briefs, the ACLU’s legal complaint, fact sheets on the case law and on the NSA spying program, please go to www.aclu.org/nsaspying.

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