WASHINGTON - January 31 - At a federal appeals court hearing today, the American Civil Liberties Union will argue that the president broke the law by authorizing the National Security Agency to engage in warrantless surveillance of Americans. The ACLU is urging the appeals court to uphold a lower court order that would prevent the NSA from resuming the illegal program.

"Unchecked government spying has no place in a democratic society," said Ann Beeson, Associate Legal Director of the ACLU and lead attorney in the case. "Under our Constitution, the president does not have the authority to ignore laws he does not like, whenever he wants. We are asking the court to exercise its duty to protect Americans from arbitrary executive power."

A district court judge ruled on August 17, 2006 that the NSA program violates the Foreign Intelligence Surveillance Act (FISA) and is unconstitutional. Stating that there are "no hereditary kings in America and no power not created by the Constitution," Judge Anna Diggs Taylor ordered the president to shut down the illegal program. The Bush administration appealed the ruling, and a three-judge panel of the Sixth Circuit Court of Appeals heard the case today.

"The Bush administration has been relentless in its disregard of the Constitution and erosion of our basic freedoms," said Anthony D. Romero, Executive Director of the ACLU. "For five years, the NSA conducted illegal warrantless surveillance of Americans. It is now up to the courts and Congress to uphold the rule of law and restore our civil liberties."

In a sudden reversal of the government’s position that it could not comply with FISA without jeopardizing national security, on January 17, 2007 the Justice Department conceded that the judicial branch has a role in overseeing surveillance by the NSA, and announced that the Foreign Intelligence Surveillance Court issued secret orders approving the surveillance. However, the Justice Department refused to confirm whether the orders are for specific warrants based on probable cause or if they generally authorize the surveillance program in broad terms. The ACLU said that a general warrant not based on individualized suspicion is unconstitutional and violates FISA.

The Bush administration filed a brief last week seeking to dismiss the ACLU lawsuit because the NSA surveillance is now under the review of the secret intelligence court. However, the ACLU noted that the president is still claiming the "inherent authority" to engage in warrantless eavesdropping and nothing would stop him from resuming warrantless surveillance tomorrow. Only an order from the court saying that the president cannot violate the law would prevent that from happening, the ACLU argued.

"Given the very real risk that the president will engage in intrusive and unchecked surveillance again - the very risk that threatened our democracy in the past and that Congress intended to eliminate by passing FISA - this court should exercise its important duty to ensure that the executive branch follows the law," said the ACLU in a brief filed with the court last week.

The ACLU has asked the appeals court to unseal secret documents filed by the Bush administration in this case, which likely pertain to the new FISA court orders. The ACLU argued that the documents were improperly classified. Senator Arlen Specter (R-PA), the ranking Republican on the Senate Judiciary Committee, echoed the ACLU’s concerns in a letter sent last Friday to Attorney General Alberto Gonzales. Senator Specter said that "the Department of Justice may have a conflict of interest in limiting access to key evidence on national security grounds as a means of controlling the outcome of these cases and obstructing the federal courts in their adjudications."

The case is ACLU v. National Security Agency, Docket No. 06-2095. More information, including legal briefs and plaintiff statements, is online at: www.aclu.org/nsaspying

Attorneys in the case are Beeson, Jameel Jaffer and Melissa Goodman of the national ACLU; Michael Steinberg and Kary Moss of the ACLU of Michigan; and Randy Gainer of Seattle law firm Davis Wright Tremaine. The lawsuit names as defendants the NSA and Lieutenant General Keith B. Alexander, Director of the NSA.

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