Two Groups Sue To Stop NSA Wiretaps

by Jim Lobe

(IPS) WASHINGTON -- Two major U.S. civil liberties groups Tuesday filed lawsuits calling on federal courts to order the Bush administration to halt a National Security Agency (NSA) program that has intercepted the overseas telephone and email communications of hundreds, possibly thousands, of U.S. citizens without a court-approved warrant.

Both lawsuits, one filed in Detroit by the American Civil Liberties Union (ACLU), the other in New York City by the Center for Constitutional Rights (CCR), charged that the controversial program, whose existence was first disclosed by the New York Times Dec. 16, violated the U.S. constitution.

"Pres. Bush may believe he can authorize spying on Americans without judicial or Congressional approval, but this program is illegal and we intend to put a stop to it," said the ACLU's executive director, Anthony Romero.

"The current surveillance of Americans is a chilling assertion of presidential power that has not been seen since the days of Richard Nixon," he added in a reference to the former president who was forced to resign in 1974 after being impeached in connection with the "Watergate scandal" that also involved illegal government surveillance.

The two lawsuits come amid growing concern, particularly in Congress among Democrats and some Republicans, that the Bush administration sees the executive branch of government as largely exempt from laws that it believes could hamper its ability to protect the country during time of war.

It has insisted that the constitution gives the president, as the country's commander-in-chief, much-expanded powers in which Congress -- and in some circumstances, even the courts -- can and should not interfere.

This interpretation, which is propounded mainly by members of the right-wing Federalist Society, some of whom have gained influential government posts under Bush, had already surfaced in connection with the administration's insistence that it has the right to detain suspected terrorists indefinitely.

It also underlies the White House's determined opposition to legislation -- supported by a majority of Bush's fellow-Republicans -- to ban inhumane treatment or torture against detainees before the existence of the NSA's program was disclosed.

But the NSA program's disclosure has raised concerns, among both Democrats and Republicans, to new levels.

In a harsh speech here Monday, former Vice President Al Gore accused Bush of "repeatedly and insistently breaking the law" by continuously authorizing the NSA's surveillance operations, one of a series of decisions, he added, that has "brought our republic to the brink of a dangerous breach in the fabric of the constitution."

"The American values we hold most dear have been placed at serious risk by the unprecedented claims of the administration to a truly breathtaking expansion of power," said Gore, who defeated Bush in the popular vote for president in 2000. If the president claims the power "to eavesdrop on American citizens without a warrant, imprison citizens on his own declaration, kidnap and torture, then what can't he do?"

While far less harsh, at least publicly, some Republicans have also raised serious questions about both the president's sweeping assertion of executive power and the NSA operation, in particular.

Republican Sen. Arlen Specter, who chairs the Senate Judiciary Committee, has scheduled hearings about it early next month. After insisting that the administration would not cooperate with open hearings for fear they would "tell the enemy what we're doing," Bush reversed himself last week and said he will send Attorney-General Alberto Gonzales to testify.

The NSA program, which has been repeatedly authorized by Bush since early 2002, secretly monitored the telephone calls and emails by citizens in the United States to and from suspected al Qaeda members or associates. The NSA, Washington's largest spy agency, is capable of monitoring and filtering the content of tens of millions of global communications every day.

The agency, however, is barred from using its technology against U.S. citizens unless it obtains a warrant from a special court of federal judges under a 1978 law, the Foreign Intelligence Surveillance Act (FISA).

FISA makes it relatively easy for investigators to obtain a warrant, however. The special FISA court, whose members are available virtually 24 hours a day, has almost never denied a warrant application -- only five requests have been denied out of the approximately 19,000 that have been requested since 1978.

Moreover, FISA also permits the government to monitor a target for as long as 72 hours before applying for a warrant. In case of war, no warrant is necessary for the first 15 days of hostilities.

The main question surrounding the NSA program is why the Bush administration not only ignored the already quite-flexible requirements of FISA and its special court, but also, if it found FISA's requirements too onerous, why it did even not ask Congress -- where Republicans rule both houses -- to amend the act more to its liking.

The administration, which has insisted that its interpretation of the president's commander-in-chief powers gives it the legal authority to act on its own without the involvement of the FISA court or the Congress, has refused to provide the public with any details of what remains a classified operation.

Both Bush and Vice Pres. Dick Cheney, whose chief of staff, David Addington, is perhaps the administration's foremost advocate for executive powers, have insisted that the number of targets subject to surveillance has been relatively small.

But that assertion is doubted by experts who are knowledgeable about how NSA monitoring and filtering work. They include author James Bamford, who revealed the existence of the previously super-secret agency -- and its spying on U.S. citizens -- in a book published more than 30 years ago and who has compared the current program to many of the excesses of the intelligence agencies under Nixon.

Experts like Bamford, and at least one NSA whistleblower who has come forward in the past week, suspect that conversations and emails of thousands, or even hundreds of thousands, of citizens have been intercepted. Indeed, the lawsuits are designed in part to determine how broad the surveillance has been.

One indication that the larger estimates are more accurate appeared in a Times investigative article Tuesday that recounted complaints by sources in the Federal Bureau of Investigation (FBI) that its agents were swamped by the "thousands of tips a month" that they received from the NSA that they were asked to check out.

Despite claims by Cheney in particular that the NSA program saved "thousands of lives," the article, which was based on dozens of interviews with FBI officials, concluded that virtually all of the NSA tips "led to dead ends or innocent Americans" and "diverted agents from counterterrorism work they viewed as more productive."

The ACLU lawsuit, which was filed on behalf of a group of several prominent journalists, scholars, attorneys, and non-governmental organizations, charges that the spying program violated their constitutional rights to free speech by exercising a "chilling effect" on communications with people abroad, and to privacy by authorising searches without warrants.

In addition to Bamford, other plaintiffs include Afghanistan expert Barnett Rubin of New York University's Center on International Cooperation; Larry Diamond, a democracy specialist at the Hoover Institution, who also worked as an adviser to the U.S.-led Coalition Provisional Authority (CPA) in Iraq; Christopher Hitchens, a prominent defender of the U.S. invasion of Iraq; Greenpeace, and the Council on American Islamic Relations.