Domestic Surveillance Goes to Court

Today is a milestone day in the legal war on terrorism. For the first time, federal lawyers will be in a courtroom to defend the National Security Agency's controversial domestic surveillance program. And for the first time, a federal judge will be asked face-to-face to declare the vast wiretap effort both unconstitutional and a violation of existing federal law. Seven months or so after we first learned of its existence, one of the government's most contentious anti-terror efforts gets its day in court. Or, more aptly, it's first day in court. There are plenty more days of argument to come. Thus the critical legal journey of a thousand figurative miles begins in earnest with this one step. It's about time.

In a case poignantly styled ACLU v. NSA, a group of attorneys, journalists and scholars are asking U.S. District Judge Anna Diggs Taylor of the Eastern District of Michigan to issue an order that would enjoin the executive branch from carrying out its surveillance program, the one in which the feds monitor the telephone conversations of certain Americans without a court order or any other independent safeguard against abuse. Such a ruling would immediately be appealed and might take the fast-track to the United States Supreme Court. And it would significantly impact the other controversial government effort to collect and analyze massive amounts of telephone records to discern potential communication patterns between terror suspects.

The plaintiffs argue that the program, inasmuch as they know about its details, violates their first amendment rights to speak and their fourth amendment rights to be free from warrantless searches and seizures. They say they cannot talk to certain sources overseas, or confer with certain overseas clients, or conduct certain academic research because the NSA program has halted the free flow of information from people in the Middle East who may have something interesting to say about terrorism. And they say the President has no constitutional power to direct such a program. The ACLU also argues, echoing part of the debate going on these days in Congress, that even if the spy program doesn't somehow violate the constitutional rights of the plaintiffs, it violates the Foreign Intelligence Surveillance Act of 1978, Congress' well-intentioned effort to give the executive branch streamlined power to wiretap certain telephone conversations quickly and broadly. Even the Republican Chairman of the Senate Judiciary Committee, Arlen Specter (R-Pa.), believes the program isn't remotely close to what Congress had in mind when it passed FISA -- that's why he keeps proposing legislation that would help disband the looming legal storm clouds.

The government has responded to these arguments by saying "forget it." Instead of responding to the ACLU complaint on its merits, the feds, citing the sweeping "military and state secrets" doctrine, filed a brief last month that declared that no federal judge anywhere could issue a valid ruling on the program because of its national security implications. In fact, federal lawyers argued that today's hearing should not even be held (much less generate a ruling against the government) because it might disclose information harmful to the country's national security. Resolve the state secrets issue first, the feds say, and only if we somehow lose that argument should we be required to talk about the first and fourth amendments. "Litigating the matter will necessarily require-- and risk-- the disclosure of state secrets," government attorneys wrote, and "any attempt to work around classified facts by alluding generally to certain information, or by making assumptions about certain facts, can itself reveal a fuller picture of highly classified government activities and cause severe harm to the national security."

After reading this drivel, Judge Taylor then herself said "forget it" to the feds-- even government litigants don't get to make the rules -- and is holding the hearing anyway. The judge's lone carrot to the government was to delay until July 10th any consideration of the state-secret doctrine, which means we shouldn't expect a quick ruling from the bench. We also shouldn't necessarily expect the feds to show up today ready to argue the merits of the plaintiff's summary judgment motion. Even Judge Taylor earlier this month wrote that she didn't know if government attorneys would come to court ready to discuss the constitutional and statutory problems trigged by the NSA program. "... Although the defendants have not responded" to the plaintiffs' summary judgment motion," she wrote, "they may, if they appear, argue against it."

So, if form holds the judge will preside over the hearing, the plaintiffs will try to convince her to enjoin the surveillance program, the feds will say little except that she shouldn't be holding the hearing anyway, and then the whole gang will recess until July 12th when the feds get to make their "state secrets" pitch in full. By early fall we should have Judge Taylor's ruling. And by the end of the year the case, and a sister case out of New York, should be in full throttle through the federal appellate courts. Today is a big day then not for what it will generate in headlines but in what it portends for the future of the program, the White House's role in administering it, and the ability of Congress and the courts to check executive branch power.

One week after Sen. Specter proposed a compromise to the White House on the NSA program, the other branch of government is about to begin to chime in with what it thinks of the scope of FISA and the president's inherent powers. The political debate will thus turn on legal principles. And ultimately those legal principles are going to have to be resolved by the Supreme Court. The sooner the better, if you ask me. We deserve to know whether this intrusive government policy is legal and what the feds are going to do about it if it isn't.

Andrew Cohen writes Bench Conference and this regular law column for washingtonpost.com. He is also CBS News Chief Legal Analyst. His columns for CBS can be found online here.