Reply #5: Wired.com is courtroom-blogging the ACLU's suit [View All]

The ACLU's challenge to the government's warrantless wiretapping of phone calls between American citizens and persons outside the country the government thinks are connected to terrorism had its first real hearing today.
As I noted last week, the ACLU has an interesting strategy(http://blog.wired.com/27BStroke6/index.blog?entry_id=1496496) to get around the government's attempt to dismiss the case since it might reveal state secrets: they are arguing that the president's admission in December that the program was going on, outside of the law regulating wiretaps, is enough for the judge to rule the program illegal.


Judge Anna Diggs Taylor of Michigan's Federal District Court can, according to the ACLU, simply decide that any wiretapping of Americans without approval from a court is illegal without learning any more details about how the program operates. Not surprisingly, the Justice Department argues that it could prove the legality of the program by describing it further, but that would reveal national security secrets so the suit must be tossed under the state secrets privilege. The Justice Department also maintains that the program doesn't have to follow the law, since the president has wartime powers via the Constitution.

(snip)
The DOJ also questioned the right of the ACLU to bring the suit, since none of the plaintiffs -- which include journalists and lawyers who represent suspected terrorists -- can prove they were surveilled. It's a legally tough hurdle to get over since targets of secret wiretaps are never told they were surveilled (those whose conversations are captured by conventional criminal wiretaps are eventually told so, including the targeted person and anyone recorded talking to that person).

Judge Taylor seemed to take an interest in that point, asking Beeson to elaborate further on why a journalist such as Christopher Hitchens has standing to sue if he can't prove he was wiretapped. Taylor is planning on holding a follow-up hearing on the government's motion to dismiss the case on state secrets grounds in early July. While technically the judge could agree with the ACLU's bid for summary judgment before then, she's highly unlikely to do so before reading and holding a hearing on the government's secret arguments to dismiss the case. As in the EFF vs. ATT case, those documents are in a secret room in Washington D.C. (http://blog.wired.com/27BStroke6/index.blog?entry_id=1497337)



more
http://blog.wired.com/27BStroke6/