Domestic Spy Case Comes to Court
The most active front today in the legal war on terrorism won't be in New York or in Washington. It will be in the Eastern District of Michigan, where U.S. District Judge Anna Diggs Taylor will preside over the first in-court challenge to the National Security Agency's controversial domestic surveillance program. Expect lofty rhetoric from plaintiffs' lawyers inside that courtroom. Expect defiance from federal lawyers. Expect skepticism from the judge. But don't expect any simple answers or quick resolution.
Five months ago, the ACLU filed a complaint seeking to halt the program as a violation of federal law and the first amendment and fourth amendment rights of lawyers, scholars and journalists who have reason to contact people in the Middle East free from worry that their conversations will be monitored by law enforcement officials without a court order. No need to go to trial, these plaintiffs alleged, because all of the material facts supporting their request were undisputed and all of the relevant law points in their direction. They asked Judge Taylor to grant them a "summary" judgment that would halt the program while the legal issues surrounding it are examined by federal appeals courts.
Not so fast, say the feds. If there is any quick action in this case it ought to be in favor of the government, which should not be required to get into the details of the program due to the "military and state secrets" doctrine, which grants the executive branch broad authority to tell the courts to butt out when national security may be an issue in a case. The Justice Department wants Judge Taylor to dismiss the complaint without ever determining whether it violates the Constitution or the Foreign Intelligence Surveillance Act of 1978.
Judge Taylor already has indicated that she doesn't intend to be a pushover when it comes to government arguments that there shouldn't even be a hearing in the case. She is essentially forcing the feds into court today, where they are expected to merely recite the arguments contained in their "state secrets" motion and not try to defend the program itself. The thing to remember as this kabuki dance begins is that whatever Judge Taylor decides her ruling will be appealed and that, ultimately, the Supreme Court of the United States will have to broker this dispute (unless the White House and Congress can do that for themselves).
So don't look for big action today. But it's still a big deal in the annals of the law-- it is the day the government finally got hauled into court over the NSA program.