Dismissal of Lawsuit Against Warrantless Wiretaps Sought

By Dan Eggen
Washington Post Staff Writer
Friday, January 26, 2007

A lawsuit challenging the legality of the National Security Agency's warrantless surveillance program should be thrown out because the government is now conducting the wiretaps under the authority of a secret intelligence court, according to court papers filed by the Justice Department yesterday.

In a filing with the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, Justice Department lawyers said the lawsuit of the American Civil Liberties Union and other plaintiffs -- which received a favorable ruling from a federal judge in Detroit -- should be considered moot because the case "no longer has any live significance."

The ACLU called the government's arguments implausible and said it plans to file its response today.

The brief is the latest volley in the legal battle over the controversial spying effort, dubbed by the administration as the "Terrorist Surveillance Program," or TSP. Under the program, the NSA monitored, without obtaining warrants, telephone calls and e-mails between the United States and overseas if the government determined that one of the parties was linked to al-Qaeda or other terrorist groups.

Attorney General Alberto R. Gonzales announced last week that the government was terminating the program and that eavesdropping will be overseen by a secret 11-member court that administers the law governing clandestine spying in the United States, known as the Foreign Intelligence Surveillance Act, or FISA.

The government contends that the new arrangement essentially invalidates an August ruling in the ACLU case by U.S. District Judge Anna Diggs Taylor, who declared the surveillance program unconstitutional and ordered it halted. The government appealed to the 6th Circuit court. It wants Taylor's ruling vacated and the lawsuit dismissed.

"Plaintiffs' challenge to the TSP is now moot," the government said in its filing yesterday. "The surveillance activity they challenge . . . does not exist. And the specific relief they sought and were awarded -- injunction of the TSP -- cannot redress any claimed injury because no electronic surveillance is being conducted under the TSP."

Crucial to the Justice Department's argument is the contention that the government did not act voluntarily to stop the NSA program. "This is not an instance of 'voluntary cessation' of allegedly unlawful activity," the government lawyers wrote. "The government has not ceased surveillance -- instead, the facts and legal authorities have changed."

But Ann Beeson, the ACLU's associate legal director, said that argument is "not plausible." She added that previous court rulings made it clear that the government cannot escape a legal judgment merely by voluntarily halting its illegal activity.

"The FISA court didn't reach out on its own to do something; the government asked it to do something," Beeson said. "And absent a ruling, they are free to return to their illegal conduct again."

The new lines of argument in the ACLU case come less than a week before a hearing scheduled for next Wednesday in Cincinnati where both sides are set to offer oral arguments.

Most of the details of the new spying arrangement are considered classified by the Bush administration, including a set of orders issued by a FISA judge on Jan. 10 that authorizes the eavesdropping. As a result, the precise outlines of and legal justifications for the monitoring remain unclear.

The government signaled in its filing that it would oppose a public release of the orders, saying that "the longstanding practice is that FISA Court orders remain classified and not subject to public dissemination." Senate Judiciary Committee leaders have asked to see copies of the orders but have, so far, been rebuffed.

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