ASHINGTON – The Bush administration's
warrantless wiretapping program has a built-in feature the
Justice Department believes may shield it from ever being
challenged as unconstitutional: secrecy.
The administration has acknowledged it intercepted some U.S.
telephone conversations without warrants as it hunted for
terrorists. Whose calls? The government isn't saying. And since
only those who were spied on have grounds to sue, it's almost
impossible to mount a successful legal challenge.
A federal appeals court in Ohio dismissed one such challenge
last month because the American Civil Liberties Union and other
groups could not prove the government had listened to their
conversations. The court did not rule on whether the program was
Unless the government decides to release information about its
wiretaps – as part of a criminal case, for example – the Justice
Department said Monday the constitutional question may never be
A senior Justice Department official made the comments during a
briefing before a hearing Wednesday in San Francisco, where
lawyers are trying to challenge the program's legality. The
official, who insisted on anonymity because of the pending
litigation, said such challenges must first clear a difficult
“They would have to somehow get, through discovery or admission
from government, that they had in fact been surveilled,” the
Attorneys for an Islamic charity say they can prove just that.
Because of a government mix-up, the Al-Haramain Islamic
Foundation received what charity attorneys said was a National
Security Administration log of calls intercepted between the
charity and its lawyers. Armed with that information, the
charity is challenging the program in a San Francisco court.
The Justice Department refuses to say whether the charity's
calls were intercepted, but it wants the case thrown out because
defending it would require the government to disclose state
Asked whether the Justice Department saw any way someone could
challenge the surveillance program, the official replied, “In
the current context, 'No.'”
The U.S. Supreme Court has held that people can't sue merely to
right a wrong. They must have standing, meaning they must be
able to prove they were harmed by the government's behavior.
Even if it might mean nobody will ever have standing to sue, the
Supreme Court has said that proof is required.
“Without that, I think there is that Catch-22,” said Charles
Fried, who served as solicitor general under President Reagan.
Before adjourning for the summer, Congress hurriedly approved a
bill authorizing intelligence officials to intercept
conversations between foreign suspects and U.S. citizens without
seeking a warrant.
Steven R. Shapiro, the ACLU's legal director, said he hopes
lawmakers revisit that bill when they return to work. And he
said he remains confident that the program's secrecy will not
shield it from review forever.
“Sooner or later, in one of these cases, we're going to have the
court review this wiretap program,” Shapiro said. “I have no
doubt about it.”
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