Domestic Spying Lawsuits Face Uphill Battle

Jan. 17, 2006 — -- The lawsuits filed by two civil rights groups may face uphill challenges in trying to end the Bush administration's domestic spying program. 

The American Civil Liberties Union and the Center for Constitutional Rights have filed separate lawsuits in federal courts in Detroit and New York City. Both claim the electronic eavesdropping is illegal and unconstitutional.  The White House and the president himself have vigorously argued the spying is not only legal but vital to America's national security.  White House Press Secretary Scott McClellan today called the lawsuits "frivolous."

The lawsuits, the first major court challenges to the National Security Agency's program, claim the eavesdropping program may have monitored 10 journalists, academic scholars, political activists and lawyers with ties to the Middle East. 

The Center for Constitutional Rights argues the monitoring may have included four lawyers and a legal assistant who work on terrorism cases at the Guantanamo Bay detention facility and elsewhere overseas. 

The ACLU names as plaintiffs New York University scholar Barnett Rubin; journalist and author Christopher Hitchens; Tara McKelvey, an editor at The American Prospect; the National Association of Criminal Defense Lawyers; Greenpeace; and the Council on American-Islamic relations.

      Lawyers for the plaintiffs admit it will be difficult to persuade federal judges to overturn a program the president argues is needed to track down terrorists. The ACLU's Detroit lawsuit states, "By seriously compromising the free speech and privacy rights of the plaintiffs and others, the program violates the First and Fourth Amendments of the United States Constitution."

 But the plaintiffs must rely on the courts to force the government to acknowledge whether they were spied on.  

At this point the plaintiffs can only argue that they believe they were very likely monitored.  

"We represent hundreds of men being detained indefinitely at Guantanamo Bay ... I have every reason to believe based on our goals here at the Center and what we do that the government would be very interested in spying on us and me in particular," said plaintiff Seema Ahmad, a paralegal at the Center for Constitutional Rights.

It may be difficult to persuade federal judges that the government must reveal highly classified information about the people it has monitored.  Plaintiffs may also have a hard time convincing the courts that the spying program must be stopped.  Even if a court accepts that these people were monitored in the past, the plaintiffs may have to prove that they are currently being spied on to have much hope of dismantling the eavesdropping program.  

Still, the legal problems facing the White House are mounting.   Lawyers for convicted terrorists are expected to ask courts to determine whether the convictions were at least partly the result of illegal eavesdropping.  On Capitol Hill, too, the administration will soon face questions from Congress about the legality and extent of the spying. 

On Monday former Vice President Al Gore added to the chorus of critics who claim President Bush violated the Foreign Intelligence Surveillance Act because he allowed eavesdropping without court warrants.  Gore said the administration "has been caught eavesdropping on huge numbers of American citizens and has brazenly declared that it has the unilateral right to continue without regard to the established law enacted by Congress to prevent such abuses."    

White House spokesman McClellan retorted: "I reject that wholeheartedly. In terms of Al Gore's comments, I think his hypocrisy knows no bounds." 

McClellan said Clinton's deputy attorney general, Jamie Gorelick, told Congress the president has the inherent authority to approve warrantless physical searches.  However, Gorelick has recently stated the Clinton Administration supported a 1995 law requiring warrants, and said the Clinton administration never violated that law.