WASHINGTON, Jan. 24 (UPI) -- The lawsuits launched last week against the administration's program of warantless wiretaps against Americans believed to be in contact with suspected terrorists unite liberals and conservatives, but some legal experts believe they will have a tough time winning their case.
Administration officials have argued that there were two sets of legal foundations for the program, which was run by the National Security Agency, or NSA, and which President Bush says he authorized in the weeks following the Sept. 11 attacks.
First, they say a resolution passed by Congress a week after the Sept. 11 attacks, authorizing the president to use military force against the perpetrators, implicitly allows the collection of foreign signals intelligence, even involving Americans.
Listening in to the communications of the enemy, wrote Assistant Attorney General for Congressional Affairs William Moschella, was "a fundamental incident of the use of military force" -- just as the Supreme Court had held battlefield detention to be -- and therefore authorized, as the court found detention to be, by the resolution.
"There's a big difference between detention on the battlefield and listening to Americans in their homes," said Jameel Jaffer, one of the ACLU attorneys in the case.
Sen. Arlen Specter, R-Penn., chairman of the powerful judiciary committee, has already said he thinks the Moschella reasoning about the resolution is "wrong."
But to Moschella and other administration officials, the resolution question is only a supplement to the real root of the legality of the NSA program, which is a broad, sweeping, and some contend, radical interpretation of the president's powers under Article Two of the Constitution.
This second, deeper, basis for the program's legality is that as the nation's executive and commander-in-chief, the president has the inherent power, indeed the duty, to conduct foreign intelligence gathering -- including electronic surveillance of telephone calls and e-mails -- in order to protect the nation from attack.
"This constitutional authority includes the authority to order warrantless foreign intelligence surveillance in the United States," Moschella wrote.
Some critics argue that the president's authority to collect foreign intelligence simply does not extend to the United States itself.
"Just like we don't use the Marines to patrol the streets of the United States, we don't use NSA to do law enforcement or eavesdrop on American citizens," said James Bamford, a journalist who has written several books on the agency.
The NSA runs the United States' vast signals intelligence apparatus, which listens into phone calls, faxes, e-mails and other electronic communications all over the world.
Specter and other critics argue that the 1978 Foreign Intelligence Surveillance Act limits the president's power to listen to communications in America -- even for the purposes of foreign intelligence collection -- unless there is probable cause to believe the person being surveilled is the agent of a foreign power.
Robert Turner, a law professor at the University of Virginia and a former senior official who worked on intelligence issues as a Reagan White House lawyer, scoffs at both positions.
"It's been the position of every administration since wire-tapping was invented that the president has this power for foreign intelligence, and every court that has looked at it has upheld it."
Some supporters of the administration have gone so far as to argue that the Foreign Intelligence Surveillance Act, or FISA, is in effect unconstitutional.
Specter has not made up his mind, however.
"Where you have a law which is constitutional, like (FISA), there still may be collateral, different powers in the president under wartime circumstances," he told ABC's George Stephanopoulos last week, adding it was "a very knotty question that I'm not prepared to answer on a Sunday sound bite. But I do believe that it ought to be thoroughly examined."
Other critics see the administration's sweeping claims about the president's Article Two powers as part of a bold executive power grab.
"There is an attitude in there," said one former Bush administration official, jerking his thumb towards the White House, "That if you don't leave the presidency stronger than it was when you arrived, you've failed."
But for the plaintiffs a more knotty problem is likely to be a series of unanswered questions about the exact scale and scope of the program.
That's because a key issue the courts may have to weigh is whether any eavesdropping is "unreasonable" under the Fourth Amendment.
"The degree of infringement of privacy and other rights has to be balanced against the government's interest" in the program, said Turner. "The courts say that there is no higher interest than protecting the nation from attack."
But the degree of infringement will be hard to judge without knowing more about the exact scope and scale of the program -- precisely the kind of information officials have repeatedly said would help the enemy by informing them about the limits of U.S. capability and policy.
Officials have publicly insisted that the program is limited in scope. "We have to have a reasonable basis to conclude that one party to the communication is a member of al-Qaida, affiliated with al-Qaida, or a member of an organization affiliated with al-Qaida, or working in support of al-Qaida," Attorney General Alberto Gonzales told reporters last month.
Principal Deputy Director of National Intelligence Gen. Michael Hayden, Rtd., added, "I can assure you, by the physics of the intercept, by how we actually conduct our activities, that one end of these communications are always outside the United States."
But a recent report in the New York Times suggested that the program was much wider than that, and that the FBI had been subjected to a "torrent" of thousands of phone numbers, names, and email addresses every month, apparently obtained from listening in to international communications and conducting computer searches of phone and internet traffic.
According to Bamford the program has effectively demolished what he called the "firewall between [the NSA] and the U.S. public" turning "the NSA's big ear inward" to listen in on Americans.
Bamford describes "a sort of expanding circle of contacts", that the NSA would compile, leading out from the original contact with an al-Qaida suspect.
"So if I call that person and then somebody calls me and then somebody calls that person, all those people in that chain, sort of a spider's web, will also be put on the watch listfor the FBI to check out."
"It's a classic fishing expedition," he concluded.
For any court considering the issue, the question of exactly which calls are being listened to is likely to be key.
And that may present two important obstacles for the plaintiffs. The government is almost certain to argue that the courts cannot even consider that kind of information, because of the security implications. Some courts have been deferential to these kinds of arguments in the past.
Secondly, some conservative critics of the case have argued that the plaintiffs cannot show "standing" -- the legal term of art for someone with a right to sue because they have been injured -- because they cannot show that their own personal communications were monitored in the program.
But the ACLU's Jaffer is dismissive of such claims, saying that his clients can already show a First Amendment injury because of the chilling effect that news of the program has had on their international communications.
The ACLU lawsuit joins lawyers, researchers, journalists and activists -- all of whom say they've already been hurt by the NSA program.
Being able to show a First Amendment injury also gets your Fourth Amendment issues in front of the court, says Jaffer.
Arsalan Iftikhar, the national legal director for the Council on American-Islamic Relations, which says it is the largest Islamic civil liberties organization in the United States, argued that the group's ability to represent Muslims like Yusef Islam -- the pop singer Cat Stevens -- and scholar Tariq Ramadan, both of whom were denied entry to the United States because of alleged terrorist links, was damaged by its inability to promise them that their communications would remain private.
A separate lawsuit, filed by the Center for Constitutional Rights in New York, which represents a number of detainees at the U.S. Navy base in Guantanamo Bay, Cuba, used similar reasoning, arguing that's its work on behalf of its clients is fatally compromised if lawyers cannot guarantee confidentiality to clients or witnesses.
Reporters and researchers who work with people in Afghanistan and Iraq, "because they talked to people in other countries who the U.S. government has deemed suspicious -- they talked to witnesses, they talked to clients, they talked to sources" felt their freedom of expression had been infringed, said the ACLU's Anne Beeson.
The ACLU lawsuit, filed in Detroit, joins trenchant critics of what the administration calls its war on terror, like the Council on American-Islamic Relations, with some of its strongest supporters, like Christopher Hitchens.
Hitchens has been a fervent advocate of the Bush administration's tough line on its war, an implacable defender of the decision to invade Iraq and a stern critic of those who have questioned Bush's motives.
In prosecuting the war, he told a meeting at George Washington University in April of 2002, the Bush administration "should be criticized only when it wavers."
But now, Hitchens -- in common with conservative gadflies like Bob Barr, and heavier hitters like Grover Norquist -- is alarmed by what he sees as a grab for unaccountable executive power by the Bush administration.
"In wartime conditions," Hitchens told an ACLU conference call for reporters last week, "It's more important rather than less, that questions be asked about those who claim to be fighting on our behalf."
Hitchens said the danger was that "emergency and panic measures that might have understandably been taken in the days immediately following Sept. 11 become entrenched, become embedded, become permanent and institutionalized."
"Make no mistake," he said, "If you give this power to one government, you give it to all of them."
And he concluded with a somber warning that, "People who are now defending this policy for partisan reasons will have cause to regret it when it's turned on them."
