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DOJ, ACLU lawyers square off again over NSA surveillance program

[JURIST] A lawyer for the US Justice Department (DOJ) argued in federal court again [JURIST report] Monday that a lawsuit challenging the National Security Agency's warrantless domestic surveillance program [JURIST news archive] must be dismissed because defending it in court would jeopardize national security. In the hearing in US District Court in Detroit, DOJ special litigation counsel Anthony J. Coppolino said that requiring the government to obtain warrants before intercepting the telephone conversations would hinder the fight against al Qaeda. Investigations could be "destroyed" if warrants tip off suspects to the surveillance, he said. A lawyer for the American Civil Liberties Union (ACLU), which is representing the plaintiffs in the lawsuit, countered [ACLU press release] that President Bush "does not have the authority to decide which laws he will or will not follow." The ACLU lawyer, Ann Beeson, said last month's US Supreme Court decision in Hamdan v. Rumsfeld [JURIST report] shows that the war on terrorism does not give the president "a blank check to trash the rule of law and the fundamental rights that are the cornerstones of our democracy." Beeson conceded, however, that the NSA could use some warrantless electronic surveillance under the Foreign Intelligence Surveillance Act (FISA) [official materials].

The plaintiffs, who are journalists, scholars and lawyers, argue that the program violates their rights to privacy and free speech [complaint, PDF; ACLU materials], and that enough information has been made public about the program for the court to determine whether it is legal. The NSA has acknowledged warrantless eavesdropping on international phone calls made from within the US, but the Bush administration contends the program is legal under Bush's inherent powers as commander-in-chief and under a 2001 congressional resolution [PDF text] authorizing the use of force against al Qaeda and other terrorist organizations. US District Judge Anna Diggs Taylor last month denied a government motion [JURIST report] to stay consideration of the ACLU's motion for partial summary judgment on state secrecy grounds. Beeson said she expects a ruling on the motion to dismiss soon. Reuters has more. The Detroit News has local coverage.

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