Government Wants Eavesdrop Case Tossed

By way of followup to yesterday's post on the NSA eavesdrop program's day in court, I'd point to today's article by Adam Liptak in the NYTimes. He reports that the hearing room was packed for the arguments yesterday, and that the government, as expected, urged the judge to toss the case on "state secret" grounds. Lawyer Anthony Coppolino argued that the while program is lawful, "the evidence we need to demonstrate to you that it is lawful cannot be disclosed without that process itself causing grave harm to United States national security."

The ACLU's attorney maintained that the suit hinges on two questions: whether those who brought it have standing to do so, and then whether the president was authorized to institute the program under existing law. Liptak: "The government's main argument on Monday, repeated over and over, was that more facts are required but that more facts cannot be disclosed. Judge Taylor asked few questions but at one point appeared frustrated by this approach," saying "You have conceded, have you not, that a program has been authorized?"

Coppolino responded "There is very much a difference between the existence of an activity and the details of that activity." Continuing the (in my view specious) line that the president has unlimited war-making power, Coppolino continued "The president's constitutional power doesn't simply disappear when Congress enacts a statute. Surveillance of an enemy is indeed a necessary incident of war."

The ACLU's Beeson: "If FISA didn't work, the proper procedure under our constitutional system was for the president to go back to Congress and ask it to amend the law. Our constitutional system was set up to require the president to follow the law just like anyone else. If our view of the separation of powers is extreme, then the Constitution is extreme."

I think this case will end up hinging on the standing issue, which the judge wanted to hear more about than planned yesterday. She has also scheduled a hearing for July 10 at which the government will make its case to throw out the suit altogether.

Maybe it's just the bits and pieces that Liptak picked for the article (or maybe not), but the arguments offered by the ACLU here seem much more reasonable than those put forth by Coppolino. I'm not convinced that they'll be able to overcome the standing questions, let alone the state secrets argument, but in many ways I hope they do.