The Senate having caved, a court gets a shot at warrantless spying

The Center for Constitutional Rights files a motion seeking an end to the program.

By Tim Grieve
March 9, 2006 7:39PM (UTC)
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The White House may have dodged a Senate investigation into its warrantless spying program, but it's not entirely out of the woods yet. In a federal court in New York today, the Center for Constitutional Rights will file a motion seeking an injunction ordering an immediate halt to the spying program.

The center's lawyers argue that the Bush administration has already admitted enough facts to establish that the warrantless spying program is illegal. "The only facts necessary to resolve this dispute have been admitted by defendants," they write in their motion for partial summary judgment. "They have admitted that the NSA spying program exists, that it consists of 'electronic surveillance' that would otherwise be covered by FISA, and that it monitors calls and emails between persons outside the United States and persons inside the United States, where the government has reason to believe that one of the persons is associated with al Qaeda or unspecified groups supportive of al Qaeda, or otherwise fits its open-ended criteria for targeting. In addition, defendants have admitted that they conduct the surveillance without judicial approval in the form of a court order."


The CCR argues that the warrantless spying program violates the Foreign Intelligence Surveillance Act, the First and Fourth Amendments to the U.S. Constitution and the notion of separation of powers inherent in it.

"The president's secret authorization of the NSA surveillance program, in direct contravention of two federal criminal statutes, reflects the kind of unilateral executive action that the framers of our Constitution sought to countermand through a system of checks and balances," they write. "The president has asserted that in the context of the 'War on Terror,' there are no checks and balances, because he has unilateral and unlimited power to choose 'the means and methods of engaging the enemy.' But as the Supreme Court stated less than two years ago, in rejecting similar presidential assertions of uncheckable executive power to detain 'enemy combatants,' 'a state of war is not a blank check for the president.' Federal statutes, the United States Constitution, and the rule of law itself require that the president be ordered to desist from exercising power that Congress has expressly denied him, that violates First and Fourth Amendment rights, and that is not authorized by any provision of the Constitution."

As the CCR files its motion, Attorney General Alberto Gonzales continues to defend the warrantless spying program -- and to insist that the administration doesn't need the legislation that Republicans on the Senate Intelligence Committee have proposed as part of their "accommodation" with the White House. "There's a general consensus -- quite frankly -- that this is a needed program," Gonzales said during a speech before the National Association of Attorneys General Wednesday. Maybe he's right. But just because something is needed -- money for hurricane relief, war funding, ethics reform -- doesn't mean it can be accomplished by a stroke of the president's pen.

Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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