- The Washington Times - Monday, June 12, 2006

DETROIT (AP) — The government’s warrantless domestic spying faced its first courtroom test yesterday, with the Bush administration arguing the practice is well within the president’s authority but that proving it would require revealing state secrets.

The American Civil Liberties Union, which brought the case against the National Security Agency (NSA), wants the program halted immediately, saying it violates free speech and privacy.

The ACLU said the state-secrets argument is irrelevant because the Bush administration already has publicly revealed enough information about the program for U.S. District Judge Anna Diggs Taylor to rule.

But government attorney Anthony J. Coppolino told the judge that the case cannot be decided based on a “scant public record.”

“This case does not involve easy questions,” he said. “It’s a case that requires a robust factual record.”

Mr. Coppolino alluded several times to a classified court filing, which Judge Taylor indicated she had not yet reviewed. In that brief, he said, the government has demonstrated that the program “is narrowly and specifically focused on al-Qaida.”

Judge Taylor gave no indication of when she might issue a ruling.

The plaintiffs do not have access to the classified brief, and even the judge would have to make a special request and travel to Washington to read it, said Ann Beeson, the ACLU’s associate legal director and the lead attorney for the plaintiffs.

Yesterday’s hearing marked the first time the constitutionality of the eavesdropping was argued in court. A similar lawsuit was filed in federal court in New York by the Center for Constitutional Rights, but no hearings have been held there.

The administration has acknowledged eavesdropping on Americans’ international communications without first seeking court approval. President Bush has said the eavesdropping is legal because of a congressional resolution passed after theSeptember 11, 2001, attacks that authorized him to use force in the fight against terrorism.

The parties in the ACLU lawsuit, who include journalists, scholars and lawyers, say the program has hampered their ability to do their jobs because it has made international contacts, such as sources and potential witnesses, wary of sharing information over the phone.

“We’re not arguing that the administration — the executive office — doesn’t have the power to protect us by spying,” said Detroit lawyer Noel Saleh, a plaintiff in the case and president of the Arab Community Center for Economic and Social Services in Dearborn, Mich. “What we’re arguing is that they don’t have the power to protect us by violating the Constitution.”

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