NY Times article + call for action - Judge Hears Arguments on Federal Spying Program

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NY Times - Judge Hears Arguments on Federal Spying Program

 

to see the color pix (complete with light coloured suit and yellow-green tie, -  north of the Raritan River in September!) click on the NYtimes link below

 

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Hiroko Masuike for The New York Times

 

Shayama Kadidal, left, and William Goodman, center, of the Center for Constitutional Rights, and Michael Avery, professor of law at Suffolk University Law School, left U.S. District Court Tuesday.)  

 

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http://www.nytimes.com/2006/09/06/washington/06nsa.html

 

The New York Times

 

 Judge Hears Arguments on Federal Spying Program

By ADAM LIPTAK

Published: September 6, 2006

 

In a lively oral argument lasting almost three hours, a federal judge in Manhattan indicated yesterday that he had serious reservations about the legality of a National Security Agency surveillance program that monitors the international communications of people in the United States.

 

But the judge, Gerard E. Lynch, also said preliminary issues might keep him from ever deciding the question of whether the program was lawful.

 

In a sweeping decision last month, Judge Anna Diggs Taylor of Federal District Court in Detroit ruled that the program was unconstitutional and ordered it shut down. The government filed an appeal immediately, and Judge Taylor has temporarily stayed her decision.

 

At the beginning of yesterday's argument, the second to consider the legality of the program, Judge Lynch said he would "devote little time to the First and Fourth Amendments." Judge Taylor's decision relied heavily on arguments based on them.

 

Judge Lynch confined himself, instead, to questions about his ability to rule on the merits and, if he can, on whether the program violates the constitutional separation of powers.

 

Judge Lynch distinguished military action abroad from domestic activity, and he indicated that Congress might have the power to limit the president's authority to act within the United States.

 

"Even Julius Caesar didn't get to bring his armies back into Rome, although he did," the judge said.

 

One preliminary issue is whether the plaintiffs, the Center for Constitutional Rights and several of its lawyers, have standing, the requirement that they demonstrate a concrete injury from the program. The plaintiffs represent people accused of terrorism, and they say their ability to conduct their work has been affected by the possibility of surveillance. The government says such speculation is insufficient to show standing.

 

The government also asserts that Judge Lynch should dismiss the case because allowing it to proceed would jeopardize national security. It says that neither the plaintiffs' standing nor the question of the program's lawfulness can be evaluated without exposing state secrets. The government has relied heavily on this so-called state-secrets privilege in a series of recent cases.

 

In a move that surprised Judge Lynch and lawyers who have been following the debate over the surveillance program, a government lawyer seemed to shift tactics to bring one more legal question within the scope of the privilege.

 

It has been widely assumed that the government has acknowledged that the surveillance program violates the Foreign Intelligence Surveillance Act, a 1978 law that requires the government to obtain a warrant from a secret court before wiretapping the international communications of Americans for national security purposes.

 

"We don't agree," the lawyer, Anthony J. Coppolino, said, "that the government has specifically conceded that point." He added that the question could not be answered without endangering national security.

 

Statements from government officials that seemed to make the concession, Mr. Coppolino said, "may not be fully complete, as they have all indicated."

 

Judge Lynch was taken aback by the shift in tactics. "This is the first time," he said, "that I have understood that the government is taking the position that it is a contested issue whether this violates FISA."

 

Judge Lynch said he did not recall anything in the government's briefs on this argument. Mr. Coppolino was unable to provide a citation.

 

Judge Lynch was appointed by President Bill Clinton in 2000. He had been a professor at the Columbia University School of Law for more than 20 years, specializing in criminal law, constitutional theory and legal ethics.

 

He has not left the classroom behind entirely. The argument yesterday was studded with colorful hypothetical questions and echoes of the Socratic method. In response to one of his questions, about whether Yankees fans threatened with being strip-searched before entering the stadium would have standing to sue, Mr. Coppolino literally threw up his hands. "I don't know," he said, exasperated.

 

Judge Lynch appeared troubled by Mr. Coppolino's argument that the president's inherent constitutional power was enough to override Congressional enactments like the Foreign Intelligence Surveillance Act.

 

The judge also discounted the argument that a 2001 Congressional authorization to use military force granted the president the power to violate the surveillance act. "I'm not too impressed by that one," he said.

 

Judge Lynch pressed Mr. Coppolino with a series of questions on the limits of presidential power in the face of Congressional prohibitions.

 

"So he can build a B-1 bomber if he wants to?" the judge asked. "If the president feels it necessary to break into a psychiatrist's office to find out what Al Qaeda is up to, he can do that?"

 

Mr. Coppolino did not offer direct responses to those questions, but he was willing to say that the executive branch was sometimes entitled to take extraordinary steps. Asked if an American lawyer who had communicated with Al Qaeda could be grabbed on the street and interrogated about it, Mr. Coppolino responded, "I would say it is possible, depending on the scenario that is at stake."

 

Judge Lynch did not appear persuaded. "It's pretty uncharted ground that you're asking me to get on," he said. Then, apparently recalling the government's state-secrets argument, he added, "Or, you're asking me to stay off of it."

 

Summing up, Judge Lynch said: "We're debating a rather abstract but rather vital issue. Does the president have the power to do something despite the fact that Congress said 'thou shalt not have this power'?"

 

He added, "I have no idea at this point how I'm going to come out on this."

 

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 http://www.bordc.org/callin.php

 

Join the National Call-in to Congress. Stop the Big Brother NSA Bills!

 

Last December, we learned that the President had broken the law and violated the Fourth Amendment to our Constitution by allowing the National Security Agency to spy on ordinary Americans' communications. Challenges to this massive privacy invasion are making their way through the court system, but now some members of Congress are scheming to let the President off the hook. Most prominently, the White House and Senator Arlen Specter proposed a sham "compromise" bill that will help the government continue to break the law, vastly expanding the president's power to spy on you without any meaningful oversight from Congress or the courts.

Take action to stop the surveillance bills by calling Congress on Tuesday, September 12. The BORDC and other organizations (see below) have declared the weeks of September 5 and September 11 "National Call-in to Congress Weeks" and are asking their constituents to call their members of Congress on a specific day. BORDC supporters will be calling on Tuesday, September 12.  If that day is not convenient for you, choose another day, but please call.  Let's keep those phones ringing in the Congressional halls for two weeks straight!

The Message

Please call each of your Senators and your Representative and urge them to:

• OPPOSE Senator Specter's S. 2453, Senator DeWine's S. 2455, and Representative Wilson's H.R. 5825. For details including links to bill text, click here.
• OPPOSE any other legislation that would give the executive branch new surveillance powers that are immune to oversight by the courts and Congress
• SUPPORT a full, public investigation of the NSA surveillance program.

To reach your representatives, call the Capitol switchboard at 202-224-3121 (24 hours) and ask the operator to connect you. Or use the BORDC Call-in page to find your legislators' phone numbers and to let us know how your calls went.

Sample Talking Points

• Congress should investigate, not legislate. The Administration has not yet answered important questions regarding the program and has blocked investigation into its authorization. A full investigation into the domestic surveillance program is urgently needed to determine the nature and scope of the spying program, as well as the facts surrounding its approval.
• Congress should let the traditional court system do its job. Senator Specter's bill, S. 2453, would pull all lawsuits against the wiretapping program out of the traditional legal system and into a secret court that has no procedures for hearing argument from anyone but the Administration. Anyone who has broken the law must be held accountable by the courts.
• Congress enacted the Foreign Intelligence Surveillance Act (FISA) as the exclusive means for conducting domestic surveillance. That law requires that the government obtain approval from a secret intelligence court before eavesdropping on Americans. The proposed new legislation would reward the Administration's stonewalling and failure to follow the laws passed by Congress. The rule of law must be restored before any further changes are considered.
• We cannot allow terrorists to change the core values of America. As Americans, we believe in checks and balances, and we have a system that works. Spying on people without a judge's permission and without evidence of any crime betrays that system and violates the law.

Organizations supporting the call-in day include: American-Arab Anti-Discrimination Committee, American Civil Liberties Union, Bill of Rights Defense Committee, Center for National Security Studies, Council on American-Islamic Relations, Downsize DC.org, Electronic Frontier Foundation, First Amendment Foundation, National Association of Criminal Defense Lawyers, National Committee Against Repressive Legislation, National Lawyers Guild, Open the Government, Privacy Activism.

 

Last December, we learned that the President had broken the law and violated the Fourth Amendment to our Constitution by allowing the National Security Agency to spy on ordinary Americans' communications. Challenges to this massive privacy invasion are making their way through the court system, but now some members of Congress are scheming to let the President off the hook. Most prominently, the White House and Senator Arlen Specter proposed a sham "compromise" bill that will help the government continue to break the law, vastly expanding the president's power to spy on you without any meaningful oversight from Congress or the courts.

Take action to stop the surveillance bills by calling Congress on Tuesday, September 12. The BORDC and other organizations (see below) have declared the weeks of September 5 and September 11 "National Call-in to Congress Weeks" and are asking their constituents to call their members of Congress on a specific day. BORDC supporters will be calling on Tuesday, September 12.  If that day is not convenient for you, choose another day, but please call.  Let's keep those phones ringing in the Congressional halls for two weeks straight!

The Message

Please call each of your Senators and your Representative and urge them to:

• OPPOSE Senator Specter's S. 2453, Senator DeWine's S. 2455, and Representative Wilson's H.R. 5825. For details including links to bill text, click here.
• OPPOSE any other legislation that would give the executive branch new surveillance powers that are immune to oversight by the courts and Congress
• SUPPORT a full, public investigation of the NSA surveillance program.

To reach your representatives, call the Capitol switchboard at 202-224-3121 (24 hours) and ask the operator to connect you. Or use the BORDC Call-in page to find your legislators' phone numbers and to let us know how your calls went.

Sample Talking Points

• Congress should investigate, not legislate. The Administration has not yet answered important questions regarding the program and has blocked investigation into its authorization. A full investigation into the domestic surveillance program is urgently needed to determine the nature and scope of the spying program, as well as the facts surrounding its approval.
• Congress should let the traditional court system do its job. Senator Specter's bill, S. 2453, would pull all lawsuits against the wiretapping program out of the traditional legal system and into a secret court that has no procedures for hearing argument from anyone but the Administration. Anyone who has broken the law must be held accountable by the courts.
• Congress enacted the Foreign Intelligence Surveillance Act (FISA) as the exclusive means for conducting domestic surveillance. That law requires that the government obtain approval from a secret intelligence court before eavesdropping on Americans. The proposed new legislation would reward the Administration's stonewalling and failure to follow the laws passed by Congress. The rule of law must be restored before any further changes are considered.
• We cannot allow terrorists to change the core values of America. As Americans, we believe in checks and balances, and we have a system that works. Spying on people without a judge's permission and without evidence of any crime betrays that system and violates the law.

Organizations supporting the call-in day include: American-Arab Anti-Discrimination Committee, American Civil Liberties Union, Bill of Rights Defense Committee, Center for National Security Studies, Council on American-Islamic Relations, Downsize DC.org, Electronic Frontier Foundation, First Amendment Foundation, National Association of Criminal Defense Lawyers, National Committee Against Repressive Legislation, National Lawyers Guild, Open the Government, Privacy Activism.

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