WASHINGTON – Civil liberties and Arab-American groups on Tuesday filed a Supreme Court appeal to try to halt the federal government's surveillance activities against U.S. residents suspected of ties to terror activities.
The unusual legal maneuver is said to be on behalf of people who don't even know they're being monitored. But the court may refuse even to consider the appeal, which would be the first post-Sept. 11 anti-terror case to reach the justices.
The American Civil Liberties Union, the National Association of Criminal Defense Lawyers, the American-Arab Anti-Discrimination Committee and the Michigan-based Arab Community Center for Economic and Social Services filed the suit. It asks the court to consider the boundaries of the USA Patriot Act, which gave the government broader spying authority after the terrorist attacks.
The ACLU argued that a review court misinterpreted the Patriot Act, making it too easy for the government to get permission to listen to telephone conversations, read e-mail or search private property, and to use the information gathered in criminal cases.
"On behalf of all Americans, we are urging the Supreme Court to reject the extreme notion that Attorney General [John] Ashcroft can suspend the ordinary requirements of the Fourth Amendment to listen in on phone calls, read e-mails, and conduct secret searches of Americans' homes and offices," the ACLU's associate legal director, Ann Beeson, said in a statement.
The legal request also gives the court the chance to review the constitutionality of the Foreign Intelligence Surveillance Act, originally enacted in 1978. FISA and the Foreign Intelligence Surveillance Court of Review were created under a federal law intended to authorize government wiretaps in foreign intelligence investigations.
Critics worry there are not enough checks to ensure the government's snooping doesn't stretch to law-abiding citizens.
But the high court may not allow the appeal because the ACLU was not one of the parties in last year's case heard by a panel of judges assigned to review the court's actions. The ACLU filed arguments opposing the government but was not directly involved.
In that case, which was decided last November, federal judges said the Justice Department is permitted to employ secret wiretapping and surveillance tools against domestic criminals as well as foreign terrorists.
The decision was based on an appeal by the Justice Department to a May ruling by the panel. That ruling said the Justice Department's interpretation of its wiretap powers under the Patriot Act was wrong and had overreached the original intent of the FISA.
In a separate motion, the groups argued that they should be allowed to appeal the decision even though they were not a formal party in earlier court proceedings on the issue.
"These fundamental issues should not be finally adjudicated by courts that sit in secret, do not ordinarily publish their decisions, and allow only the government to appear before them," the groups said in their filings.
The ACLU and others argue that they represent people who are unknowingly being monitored under warrants approved by the super-secret FISA court or "spy court."
"The irony is no one can know for certain whether they are the subject of these secret surveillance orders because they're secret," Beeson said.
She said the ACLU has "taken this somewhat radical step" to protect those people.
But legal experts say the Supreme Court likely will stay as far away as possible from this hot-button issue.
Washington lawyer Stewart Baker, former general counsel for the National Security Agency, said the groups can argue that this is the Supreme Court's best, and possibly only, chance to consider the work of the surveillance court.
Still, he said, "I can't imagine why the Supreme Court would take this case. The court doesn't take cases that are unique."
Scott Silliman, director of Duke University's Center on Law, Ethics and National Security, said the Supreme Court would have to make an extraordinary exception.
"Clearly it will be dismissed," he said.
The November ruling by the review court was a huge victory for the Bush administration, which argues that the surveillance is an important component of its war on terror.
Not only was the White House a participant in the case, but the Justice Department appealed after the spy court turned down a request for a wiretap. It was the first time the review panel had ever met, or issued a decision, during the spy court's 25-year existence.
A key part of the review panel's ruling removed legal barriers between the surveillance operations of the Justice Department's criminal and intelligence divisions.
The decision "opens the door to surveillance abuses that seriously threatened our democracy in the past," justices were told in the filing.
Recent news reports say the Justice Department is seeking another expansion of its spy powers with a new bill that would go further than the Patriot Act.
The Associated Press contributed to this report.