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Judge asked to strike down
Bush privacy invasion law

Warrantless wiretapping law "unconstitutional"

Photo courtesy University Press

By Julia Cheever

August 10, 2007

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 searches.

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 two.

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 surveillance program.

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.

Crime of the Century

Copyright © 2007 by Bay City News, Inc. -- Republication, Rebroadcast or any other Reuse without the express written consent of Bay City News, Inc. is prohibited.




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