In 2nd NSA Wiretap Case, Judge Sounds Concerns

In addition to the ACLU’s suit against the NSA filed in Michigan, which recently resulted in a (temporarily delayed) injunction to shut down the agency’s warrantless wiretapping program, the Center for Constitutional Rights is pursuing a separate case challenging the program in New York.

Arguments were heard yesterday in that case, and it appears that skeptical of the government’s position.

The administration’s lawyer brought out the big guns (“Suppose for example the president obtains intelligence that a nuclear bomb was planted … right there in Washington, and the only way he was going to find out whether that was going to happen was to grab the person and interrogate him….Would that be in his constitutional authority? I would say so.”), but to no great effect, it seems.

The back and forth between Judge Gerard Lynch and government attorney Anthony Coppolino sounds like good theater:

The judge also discounted the argument that a 2001 Congressional authorization to use military force granted the president the power to violate the surveillance act. “I’m not too impressed by that one,” he said.

Judge Lynch pressed Mr. Coppolino with a series of questions on the limits of presidential power in the face of Congressional prohibitions.

“So he can build a B-1 bomber if he wants to?” the judge asked. “If the president feels it necessary to break into a psychiatrist’s office to find out what Al Qaeda is up to, he can do that?”

Mr. Coppolino did not offer direct responses to those questions, but he was willing to say that the executive branch was sometimes entitled to take extraordinary steps. Asked if an American lawyer who had communicated with Al Qaeda could be grabbed on the street and interrogated about it, Mr. Coppolino responded, “I would say it is possible, depending on the scenario that is at stake.”

Judge Lynch did not appear persuaded. “It’s pretty uncharted ground that you’re asking me to get on,” he said. Then, apparently recalling the government’s state-secrets argument, he added, “Or, you’re asking me to stay off of it.”

Summing up, Judge Lynch said: “We’re debating a rather abstract but rather vital issue. Does the president have the power to do something despite the fact that Congress said ‘thou shalt not have this power’?”

He added, “I have no idea at this point how I’m going to come out on this.”

Lynch could issue his ruling any time.