Wiretapping battle continues in Congress, courts

By Sarah Lai Stirland

May 22, 2006

The fight over the legality of the warrantless surveillance activities by the Bush administration is continuing to boil in both Congress and the courts this week.

The Senate Judiciary Committee on Thursday is scheduled to debate and approve a compromise version of legislation that is designed to establish an oversight process to the surveillance programs in question at the National Security Agency.

The latest draft has drawn fire from the American Civil Liberties Union. The group sent a letter to members of the Senate last week, urging them to oppose the measure.

"The bill is one of the worst bills I've seen on a lot of issues," said Lisa Graves, the ACLU's senior counsel for legislative strategy. "It basically gives away the store."

Graves noted that Judiciary Chairman Arlen Specter, R-Pa. and Jon Kyl, R-Ariz., struck the compromise. The bill would clarify that the president's decision to authorize warrantless wiretaps is not a crime and would remove many of the oversight procedures currently required by the Foreign Intelligence Surveillance Act. It also would require that legal challenges to the wiretapping program be heard by the Foreign Intelligence Surveillance Court of Review.

Similar House legislation has yet to be introduced, but another bill, H.R. 5371, would clarify that all foreign intelligence surveillance of Americans is subject to the oversight procedures in the 1978 Foreign Intelligence Surveillance Act. The legislation also would authorize more money to help the foreign surveillance court approve warrants expeditiously.

John Conyers of Michigan and Jane Harman of California, the top Democrats on the House Judiciary and Intelligence committees, authored the measure.

In federal courts around the nation, meanwhile, the administration is busy fighting legal challenges to its wiretapping authority.

The Justice Department is scheduled to file responses to two lawsuits brought by civil-liberties groups in Michigan and New York on Friday. The two courts gave Justice more time to file after department attorneys requested it.

In a filing with a federal district court in New York last week, the attorneys said they were overwhelmed by the workload posed by several NSA-related lawsuits being filed around the country. The attorneys also said department heads must approve the proposed legal argument in the case. They plan to argue that the wiretapping involves military and state secrets and that the case should be dismissed.

That is the same argument Justice made to a federal court in San Francisco, where the Electronic Frontier Foundation has launched a class-action lawsuit against AT&T for allegedly giving the government consumer telephone records. Justice intervened and asked the court to dismiss the case because the facts involve a state secret that, if revealed, could jeopardize national security. Justice and EFF are scheduled to submit their arguments on that point sometime Monday.

Wired News published some of those documents Monday. It is unclear what impact their publication will have on the court proceedings.


By Sarah Lai Stirland

May 22, 2006

http://www.govexec.com/defense/2006/05/wiretapping-battle-continues-in-congress-courts/21868/