ACLU – Protecting the Terrorists Again

The ACLU has filed motions to have the Foreign Intelligence Surveillance Court release information pertaining to warrant-less wiretapping. In an unprecedented move the Court has requested the White House to respond before August 31.

Another shot by the ACLU to undermine National Security and protect Terrorists over seas.

In a surprising move, a secret spying court ordered the Bush Administration to respond to the ACLU’s request for the court to reveal the legal pinnings behind its decisions that gave legal blessing to the government’s warrantless wiretapping program.

The Foreign Intelligence Surveillance Court ordered (.pdf) the government to respond by August 31 to the ACLU’s request to see the court’s orders, which the court described as an “unprecedented request that warrants further briefing.” The court’s own unprecedented response writes the latest strange chapter in the ongoing secret spying saga.

Those orders reportedly include a still-secret decision curtailing the government’s spying that led the Administration to successfully press Congress to hurriedly expand the government’s spying authority before the summer recess.

The Administration said the nation was at risk because of a “surveillance gap,” and a Republican Congressman let slip on Fox News that the secret spying court had made a secret ruling against the Administration.  The nature of the so-called “surveillance gap” remains a mystery to the public and even the large majority of Congress.

ACLU attorney Jameel Jaffer says this knowledge gap is exactly why the ACLU decided, on August 8, to petition the secret court (.pdf):

“Congress has just granted the president sweeping new surveillance authorities, yet no one knows why or whether that was needed,” Jaffer said. “The point of this motion is to make the orders public.”

The FISC normally decides whether the government can eavesdrop on Americans and foreigners inside the country if the government suspects they are spies or terrorists.  But in October 2001, the administration began a warrantless wiretapping program that consisted in part of listening into to international conversations between someone inside the United States and someone outside it, when the government suspected one of the parties had some connection to a terrorist group. 

The Administration admitted in December 2005 the program existed, but said that the President’s wartime powers allowed him to bypass the court, which it said was too slow and cumbersome.  That court almost never turns down wiretap requests and its orders in wiretapping cases are secret.

That makes sense given the court issues orders about surveillance of possible foreign spies, according to Jaffer.

“There’s a very good national security argument for keeping those court orders secret,” Jaffer said. But “these are orders that include legal reasoning about the [Foreign Intelligence Surveillance Act] and could include broad rulings that implicate Constitutional rights.”

After the Democrats took control of Congress in January 2007, Attorney General Alberto Gonzales unexpectedly announced that the warrantless spying program would now be overseen by the very court it originally avoided. Gonzales said the court had come up with inventive orders to approve the program, a description that confused many legal experts.

Publishing the orders, if they deal with broad legal issues– rather than a specific case, would not be unprecedented.  In 2002, the court ruled against the government on limits on cooperation between intelligence gathering and criminal investigations (known as the wall). That opinion was later published, as was the subsequent decision of the FISC Court of Review to overrule the lower court. The court also released documents in the 1990s related to its power to authorize physical searches, Jaffer said.

When asked how the ACLU even found the secret court, Jaffer says the court’s rules are now public, and they had the clerk’s address.

The court also ordered the government to file at least some of their response unredacted and gives the ACLU two weeks to file a rebuttal.

The Justice Department is reviewing the order, according to spokesman Charles Miller, who was unable to comment further.

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