Bush Administration Wants To Block ACLU From Wiretapping Law Litigation

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July 30, 2008 3:50 p.m.

Should federal judges interpreting the new U.S. wiretapping law be able to hear and consider legal arguments from outside parties like the American Civil Liberties Union?

The Bush administration says no.

The Department of Justice filed court papers yesterday seeking to block the ACLU — and any other third party — from submitting briefs to the Foreign Intelligence Surveillance Court, the classified forums that will be primarily responsible for translating the federal law signed last month into practice.

The DOJ argues that any briefs the ACLU might file would be ill-informed because its lawyers cannot access the classified information at the heart of many FISA cases, and the proceedings would just clog the flow of cases

“The collective effect of these restrictions is to make any meaningful participation by the ACLU…impossible. … Indeed, allowing third-parties to use this Court as a general forum to present facial challenges to the Government’s surveillance activities could cause a flood of litigation that would district this Court from its important national security functions.”

But the ACLU, which has filed a lawsuit seeking access to the FISA court, says the new law is public and complex and the judges should be able to consider a wide range of views when handing down important rulings. Jameel Jaffer of the ACLU’s National Security Project said in a statement today:

“If the government’s request is granted, the court won’t hear arguments from anyone except the government and those arguments will be presented to the court in secret briefs. … Especially because the new surveillance law departs so significantly from the standards that have applied to government surveillance for the last 30 years, any proceedings relating to the new law’s constitutionality should be adversarial and as informed and transparent as possible.”

Peter Swire, a law professor at Ohio State University and senior fellow at the Center for American Progress, supports the ACLU’s position. He wrote a paper in 2004 calling for greater participation in the FISA court.

“The DOJ is taking an expansive view of executive power and narrow view of judicial power, Swire told TPMmuckraker in an interview today. “Under the government’s view, the judges seem required to uphold an unconstitutional system because the judges are forbidden from getting briefing from anyone other than the executive branch.”

While there is limited precedent for third-party involvement in the typically classified proceedings under the 1978 FISA law, the new technologies that prompted lawmakers to updat the law law may also warrant new procedures, Swire said.

“The 1978 version of FISA targeted one individual at a time or sometime one terrorist organization. The new approach sweeps far more broadly and it looks more like an administrative system than a traditional judicial wiretap order.”

“In light of those changes and the constitutional challenges to those changes, the court would be well served to be briefed with multiple viewpoints,” Swire said.

The DOJ argues that the ACLU already has an opportunity to contest the constitutionality of the FISA law a lawsuit currently pending in New York’s Southern District.

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