The Bush administration’s controversial warrantless wire-tapping programme will face its first big court test on Monday, when a federal judge in Detroit hears a direct challenge to the programme’s legality for the first time.
Opponents of the programme have broadened their campaign to include not just opposition in Congress, but more than two dozen lawsuits against the government and the telephone companies allegedly complicit in the spying, plus complaints to state and federal agencies that regulate telecommunications companies.
Opponents have turned to the courts and the regulators partly out of frustration at the failure of Congress to uncover details of the programme.
It allegedly involves intercepting the content of some overseas phone calls and e-mail involving Americans, and a much broader scheme to monitor domestic phone records. They accuse the government of carrying out both forms of surveillance without legal authority.
As early as this week, a key Senate committee is expected to vote on a bill that could give the Bush administration new powers to conduct such surveillance. But it is not clear that legislation on domestic surveillance in the war on terror will make it all the way through both houses of Congress before mid-term elections in the autumn.
“Getting consensus on legislation this year will be very difficult,” said Peter Swire, who was chief privacy officer in the Clinton White House.
So with progress on the legislative front looking uncertain, opponents are focusing on the courts. The case before the Michigan federal district court today was brought by lawyers, academics and writers, and the American Civil Liberties Union (ACLU), against the National Security Agency.
“Congress has had limited success in learning the facts about NSA wiretapping,” said Mr Swire. “But the Department of Justice faces the risk that a strong federal judge will uphold the law.”
Opponents are hoping that Judge Anna Diggs Taylor, the judge in the Detroit suit, will be the one to stand up to the government. She has already allowed the suit to proceed further than any other in the country.
Most of the rest are bogged down in battles over whether they can be heard at all. The government has tried to put a quick stop to the suits by asserting “state secrets privilege”, which allows it to withhold information that would harm national security.
But Judge Taylor refused to put her trial on hold while that issue is resolved. She will first hear the core issue of the lawsuit – did the government break the law or violate the constitution? – and only afterwards decide on the state secrets question.
The ACLU claims that the government surveillance programmes violate the first and fourth amendments to the constitution; that the president exceeded his authority by authorising eavesdropping; and that he violated the Foreign Intelligence Surveillance Act, requiring warrants from a special court for surveillance involving Americans.
The lawsuit could prove uphill for the plaintiffs, not least because none of them can prove that the government eavesdropped on them.
But Ann Beeson, who will argue the case for the ACLU, says the mere fact the eavesdropping programme exists means the attorneys involved cannot talk freely to their clients, and journalists cannot talk on the phone to sources.
© Copyright The Financial Times Ltd 2006