The uproar over the Bush Administration’s domestic-spying program led this past week to a lawsuit filed by the American Civil Liberties Union against the National Security Agency. In an effort to curtail efforts by the government to obtain phone and other records without a warrant, the lawsuit is one of the first against the many new measures the government initiated since Sept. 11.
The ACLU has an impressive case against the NSA. Its argument alleges that the surveillance program violates not only the fourth amendment to the U.S. Constitution, but also the first. Infringements upon the fourth amendment’s protection against unreasonable searches and seizures are obvious. But the ACLU also asserts an infringement upon the first amendment because communications across the world from within the United States are hindered as a result of the program.
But the suit’s grievances don’t end there. The ACLU also claims a violation of the Foreign Intelligence Surveillance Act of 1978. Thus, even if any court rules the program constitutional, it may still be found in violation of FISA, which allows for limited wiretapping by the executive branch. But FISA allows only for a maximum of 72 hours of warrantless wiretaps, within which the attorney general must obtain a warrant. NSA’s program of warrantless wiretaps has certainly been functioning for longer than that.
The lawsuit was filed in the Eastern District Court of Michigan, and will be heard by U.S. District Judge Anna Diggs Taylor. In agreeing to hear the case in the first place, Judge Taylor has already taken a significant step. Previous efforts by both the Justice Department’s Office of Professional Responsibility and the Federal Communication Commission to investigate NSA’s policies have been thwarted, supposedly because the findings would be detrimental to national security. But Judge Taylor declined to dismiss this particular case on similar grounds, perhaps marking a turn of the tide, where potential violations of civil liberties may actually be investigated and heard by the courts.
Until now, the Bush Administration has not answered the charges levied against the NSA surveillance program sufficiently. Instead of debating the charges themselves, its response has simply been that such a program is needed due to the war against terrorism. Not only is such a reply inadequate, it’s also evidence of this administration’s circular reasoning that works only to suspend certain civil liberties indefinitely.
The American public understands fully that there is a war, but we also understand that we fight this war to protect our liberties and freedoms, not to lose them to our own government. This case is an important milestone in this war because it will determine how far the government can reach into our lives to fight it. But government attorneys will likely not argue the ACLU case on its merits, but rather scold the judge for even agreeing to hear it in the first place. For a nation that prides itself on justice, governmental openness and accountability, that’s simply not acceptable. Hopefully, the courts will send an important message that unmonitored violations of Americans’ constitutional rights cannot go unpunished.