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The Bush administration has dropped its claim of ultimate authority to listen in on Americans' telephone and internet communications without first seeking a warrant, switching its strategy one day before Attorney General Alberto Gonzales is to testify before Congress. It now says a secret surveillance court will judge the plan's legality.
Last year, the ACLU successfully challenged the National Security Agency's five-year-old warrantless wiretapping program.
The ACLU questioned the administration's motives and its timing, which also came two weeks before a Jan. 31 court date. "The NSA program was operating illegally, and this is an attempt to avoid public oversight by negotiating secret rules with a secret court," said ACLU/SC Executive Director Ramona Ripston.
The ACLU sued on behalf of journalists, academics and advocacy groups, and last year a federal judge dismissed the Bush administration's claim that it, not the courts and Congress, could write the wiretapping rules. "There are no hereditary Kings in America and no powers not created by the Constitution," she wrote. The ACLU will continue to press its lawsuit.
By acknowledging that a special court created under the Foreign Intelligence Surveillance Act can decide the program's legality, the Bush administration apparently still hopes to hide the program from Americans and members of Congress.
"Without a court order that prohibits warrantless wiretapping, Americans can't be sure that their private calls and e-mails are safe from unchecked government intrusion," said Ann Beeson, lead counsel in ACLU v. NSA.
The Constitution's 4th Amendment prohibits "unreasonable searches and seizures" and requires a court-issued warrant "describing the place to be searched." This principle also applies to telephone and internet communication.