A constitutional lawyer asked a federal judge in San Francisco
Thursday to strike down the revised foreign intelligence surveillance
law enacted by Congress and signed by President Bush last weekend.
Michael Avery, representing the New York-based Center for Constitutional
Rights, told U.S. District Judge Vaughn Walker, "We are asking
this court as swiftly as possible to declare this statute unconstitutional."
Avery argued that the new law is "extraordinary" because
unlike its predecessor, it allows warrantless wiretapping and
e-mail spying without any requirement of a connection to alleged
terrorism, crime or foreign agents.
Instead, Avery said, the new law broadly allows surveillance
if the communication concerns U.S. foreign affairs - which he
said could include culture and business - and if one party in
the communication is "reasonably believed" to be outside
the United States.
Avery, a professor at Suffolk Law School in Boston, contended
that violates the constitutional Fourth Amendment ban on unreasonable
He argued, "The extraordinary thing about the statute passed
last weekend is that it has nothing to do with terrorism and nothing
to do with criminality. The program is much broader than the need."
U.S. Justice Department attorney Anthony Coppolino declined to
defend the law in court, saying that the government will wait
until the constitutional center actually files an amended lawsuit
challenging the measure.
Avery said outside of court that he plans to file the amended
lawsuit and a motion asking Walker to accept it within a day or
The center's original lawsuit was filed against Bush and other
officials in federal court in New York last year and sought an
injunction barring the administration's previous secret warrantless
The case was later transferred to Walker along with about 45
other domestic spying cases from around the country. The center's
lawsuit is the only one that was filed solely against the Bush
administration and not against telecommunications companies.
The hearing had been scheduled for arguments on the government's
motion for dismissal of the original lawsuit.
Coppolino argued the original lawsuit should be tossed out because
the new law makes it moot. He also contended it should be dismissed
on the additional grounds that proceeding with it could jeopardize
state secrets and that the plaintiffs couldn't prove they were
harmed by the classified program.
But center lawyer Shayana Kadidal urged Walker to keep the lawsuit
in place because the previous program could be reinstated when
the new law expires in six months.
Kadidal said the center's lawyers are "particularly vulnerable"
to surveillance because they represent people being detained at
Guantanamo Bay as alleged enemy combatants.
Walker took the motion for dismissal under submission and did
not say when he will rule.
He said, "I assume we're going to get some guidance"
on the state secrets issue when the 9th U.S. Circuit Court of
Appeals rules on that government claim in another of the domestic
spying cases in Walker's court.
The appeals court is scheduled to hear arguments in San Francisco
on Aug. 15 on the government's appeal of Walker's refusal to dismiss
the first of the cases, a lawsuit filed against AT&T Corp.
by four Californians last year.