Justice Department asks court to keep wiretapping challenges secret
John Byrne
Published: Wednesday July 30, 2008

Print This  Email This

In a little-reported brief filed late Tuesday with the Foreign Intelligence Surveillance Court, the Bush administration asked the court to keep any review of the warrantless wiretapping law passed earlier this year by Congress secret.

The administration also asked that the court refuse to accept legal briefs from anyone other than the Justice Department itself.

The filing, made by the Justice Department, comes in response to a motion filed by the American Civil Liberties Union earlier this month asking the court to ensure that any proceedings relating to the "scope, meaning or constitutionality of the FISA Amendments Act" be as transparent as possible.

"The government is proposing that the intelligence court should consider the constitutionality of the new surveillance law in proceedings that will be entirely secret," Jameel Jaffer, Director of the ACLU National Security Project, said in a release. "If the government's request is granted, the court won't hear arguments from anyone except the government and those arguments will be presented to the court in secret briefs. At the end of the process, the court will issue a ruling that is also secret. The process the government is proposing is completely unacceptable. Especially because the new surveillance law departs so significantly from the standards that have applied to government surveillance for the last 30 years, any proceedings relating to the new law's constitutionality should be adversarial and as informed and transparent as possible."

The ACLU is also seeking a court ruling declaring the law unconstitutional in the Southern District of New York.

Critics have bemoaned the law, which granted the telecommunications industry retroactive immunity for participating in a program that was at the time not authorized by law.

"This bill has quite literally no public value for citizens or civil liberties," constitutional law scholar Jonathan Turley said earlier this year. "It is reverse engineering, though the type of thing the Bush Administration's famous for, and now the Democrats are doing--that is, to change the law to conform to past conduct.

"It's what any criminal would love to do," Turley added. "You rob a bank, go to the legislature, and change the law to say that robbing banks is lawful."