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Courts unlikely to hear wiretap cases, legal scholars say
Yahoo News/USA Today
By Richard Willing, USA TODAY
December 22, 2005

Are warrantless wiretaps of domestic targets suspected of terrorist activity legal if the surveillance is approved by the president?

That question, raised by the disclosure of a secret National Security Agency program to eavesdrop on the phone calls and e-mails of terrorism suspects in the USA, is unlikely to be answered in a court of law, according to lawyers, legal scholars and security specialists.

The reason: The surveillance is so secret that its targets are unlikely to know they were wiretapped and thus are unlikely to raise a court challenge. That leaves the legal underpinnings of the program to be debated in Senate hearings expected to begin in early 2006.

Program circumvents 1978 law

"It looks like most of the accountability is going to have to come in the court of public opinion," says Carl Tobias, constitutional law specialist at the University of Richmond law school in Virginia.

On Friday, The New York Times reported that President Bush had signed an executive order authorizing the NSA to monitor phone calls and e-mails of citizens, legal residents and foreigners for signs of terrorist activity. The order, signed months after the Sept. 11, 2001, terrorist attacks, requires one party to the communication to be outside the USA.

The program, which the Times said targeted "hundreds, perhaps thousands" of people in the USA, circumvented a 1978 law that permits anti-terrorist surveillance in the USA with permission from a special federal court.

The NSA has satellites and other equipment able to tap and store vast amounts of information from telephone calls, e-mails and satellite transmissions around the globe. Bush and other administration officials later confirmed the existence of the surveillance operation.

On Monday, Attorney General Alberto Gonzales said the Constitution and a Sept. 14, 2001, congressional resolution allowed Bush to authorize the surveillance. In some cases, Gonzales said, seeking warrants would take too much time and would allow suspects to elude eavesdroppers.

Barry Steinhardt, privacy law specialist with the American Civil Liberties Union in New York City, says he and his colleagues have been "trying to work through" a way to challenge what he called a "policy that makes no sense."

"So far, nothing has come to mind," Steinhardt says.

Any criminal charges based on the warrantless searches could prompt a legal challenge. But Richard Sauber, a Washington, D.C., lawyer who defended an American convicted in 1999 of conspiring to spy for East Germany, says such charges are "highly unlikely."

The federal government, Sauber says, would be reluctant to reveal details of the program by making warrantless surveillance the basis for charges.

Senator to make issue 'high priority'

No criminal cases are known to have resulted from the warrantless wiretaps. Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003 to supporting al-Qaeda, was said in the Times story to have been caught with the aid of warrantless surveillance. But Faris' lawyer, David Smith, says federal prosecutors have not acknowledged that.

An eavesdropping target could file a civil suit seeking damages — if he knew he was a target. But finding someone who qualifies, says Fordham University law professor Thomas Lee, is a "shot in the dark."

Which makes the Senate Judiciary Committee the venue in which the legal underpinnings of the policy are likely to be thrashed out. Sen. Arlen Specter (news, bio, voting record), R-Pa., the committee's chairman, has promised to make the issues the program raises a "very, very high priority" when hearings are held.

Some specialists in surveillance law think the administration's defense of its program rests on a shaky foundation.

Steinhardt notes that that law permits authorities to tap without a warrant if seeking one would take too much time. In that case, the warrant can be sought up to 72 hours later.

"There's a naked assertion here that the president can do anything he wants, including violating U.S. law domestically," Steinhardt says. "That's an argument not even a second-year law student would make up on an exam."

Douglas Kmiec, an attorney in the Justice Department under Presidents Ronald Reagan and George H.W. Bush and now a law professor at Pepperdine University in Malibu, Calif., notes that the Supreme Court has not ruled out warrantless searches in anti-terrorist cases.

The 1978 law creating a secret warrant process for tapping calls in spying cases within the USA contains an exception in special circumstances.

"To say the president is acting legally or illegally oversimplifies matters," Kmiec says..

President Bush, Kmiec says, appears to be making " a good faith argument ... to comply with the law as written but not disregarding his obligation to protect American citizens."

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