This article gets at one of the key legal issues in the current NSA surveillance case: separation of powers. In this case, does the executive branch have special rights to trump Congress in times of war? If so, how does one define wartime? In the post-911 era of "asymmetrical warfare," are we in a winnable "war on terror," or is the "war on terror" no more than an Orwellian excuse for perpetual warfare and, as a consequence, perpetual surveillance and perpetually expanded executive powers?
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New York Times Judge Hears Arguments on Federal Spying Program By ADAM LIPTAK Published: September 6, 2006
In a lively oral argument lasting almost three hours, a federal judge in Manhattan indicated yesterday that he had serious reservations about the legality of a National Security Agency surveillance program that monitors the international communications of people in the United States.
But the judge, Gerard E. Lynch, also said preliminary issues might keep him from ever deciding the question of whether the program was lawful.
In a sweeping decision last month, Judge Anna Diggs Taylor of Federal District Court in Detroit ruled that the program was unconstitutional and ordered it shut down. The government filed an appeal immediately, and Judge Taylor has temporarily stayed her decision.
At the beginning of yesterday's argument, the second to consider the legality of the program, Judge Lynch said he would "devote little time to the First and Fourth Amendments." Judge Taylor's decision relied heavily on arguments based on them.
Judge Lynch confined himself, instead, to questions about his ability to rule on the merits and, if he can, on whether the program violates the constitutional separation of powers.
Judge Lynch distinguished military action abroad from domestic activity, and he indicated that Congress might have the power to limit the president's authority to act within the United States.
"Even Julius Caesar didn't get to bring his armies back into Rome, although he did," the judge said.
One preliminary issue is whether the plaintiffs, the Center for Constitutional Rights and several of its lawyers, have standing, the requirement that they demonstrate a concrete injury from the program. The plaintiffs represent people accused of terrorism, and they say their ability to conduct their work has been affected by the possibility of surveillance. The government says such speculation is insufficient to show standing.
The government also asserts that Judge Lynch should dismiss the case because allowing it to proceed would jeopardize national security. It says that neither the plaintiffs' standing nor the question of the program's lawfulness can be evaluated without exposing state secrets. The government has relied heavily on this so-called state-secrets privilege in a series of recent cases.
In a move that surprised Judge Lynch and lawyers who have been following the debate over the surveillance program, a government lawyer seemed to shift tactics to bring one more legal question within the scope of the privilege.
It has been widely assumed that the government has acknowledged that the surveillance program violates the Foreign Intelligence Surveillance Act, a 1978 law that requires the government to obtain a warrant from a secret court before wiretapping the international communications of Americans for national security purposes.
"We don't agree," the lawyer, Anthony J. Coppolino, said, "that the government has specifically conceded that point." He added that the question could not be answered without endangering national security.
Statements from government officials that seemed to make the concession, Mr. Coppolino said, "may not be fully complete, as they have all indicated."
Judge Lynch was taken aback by the shift in tactics. "This is the first time," he said, "that I have understood that the government is taking the position that it is a contested issue whether this violates FISA."
Judge Lynch said he did not recall anything in the government's briefs on this argument. Mr. Coppolino was unable to provide a citation.
Judge Lynch was appointed by President Bill Clinton in 2000. He had been a professor at the Columbia University School of Law for more than 20 years, specializing in criminal law, constitutional theory and legal ethics.
He has not left the classroom behind entirely. The argument yesterday was studded with colorful hypothetical questions and echoes of the Socratic method. In response to one of his questions, about whether Yankees fans threatened with being strip-searched before entering the stadium would have standing to sue, Mr. Coppolino literally threw up his hands. "I don't know," he said, exasperated.
Judge Lynch appeared troubled by Mr. Coppolino's argument that the president's inherent constitutional power was enough to override Congressional enactments like the Foreign Intelligence Surveillance Act.
The judge also discounted the argument that a 2001 Congressional authorization to use military force granted the president the power to violate the surveillance act. "I'm not too impressed by that one," he said.
Judge Lynch pressed Mr. Coppolino with a series of questions on the limits of presidential power in the face of Congressional prohibitions.
"So he can build a B-1 bomber if he wants to?" the judge asked. "If the president feels it necessary to break into a psychiatrist's office to find out what Al Qaeda is up to, he can do that?"
Mr. Coppolino did not offer direct responses to those questions, but he was willing to say that the executive branch was sometimes entitled to take extraordinary steps. Asked if an American lawyer who had communicated with Al Qaeda could be grabbed on the street and interrogated about it, Mr. Coppolino responded, "I would say it is possible, depending on the scenario that is at stake."
Judge Lynch did not appear persuaded. "It's pretty uncharted ground that you're asking me to get on," he said. Then, apparently recalling the government's state-secrets argument, he added, "Or, you're asking me to stay off of it."
Summing up, Judge Lynch said: "We're debating a rather abstract but rather vital issue. Does the president have the power to do something despite the fact that Congress said 'thou shalt not have this power'?"
He added, "I have no idea at this point how I'm going to come out on this."