Dan Sewell Associated Press 

CINCINNATI — President Bush’s program of secretly monitoring communications without a court warrant faces legal assaults on its constitutionality in arguments Wednesday before a federal appeals court. 

The government is appealing the ruling of a federal district judge in Detroit who said the warrantless surveillance violated rights of privacy and free speech as well as separation of powers. The Justice Department last week urged the 6th U.S. Circuit Court of Appeals to throw out the case, saying it no longer was at issue. 

Attorney General Alberto Gonzales said this month that the secret panel of judges who oversee the Foreign Intelligence Surveillance Act, passed by Congress in 1978, now is reviewing and approving applications to monitor people believed to have terrorist links. The Justice Department said in a court brief that means there’s “no longer any live genuine controversy to adjudicate.” 

The American Civil Liberties Union, which sued over the warrantless surveillance a year ago, countered that there’s no guarantee the president won’t resume what the government calls the Terrorist Surveillance Program outside the court. The ACLU also is challenging government secrecy in the case, saying it can’t determine whether current actions are following the law. 

“For all the drama around the case, we see the ultimate legal issue to be a very narrow, noncontroversial one — that is, when Congress passes a law, the president has to follow it,” said Ann Beeson, the ACLU’s lead attorney on the case. “If they were really committed to following the FISA law in the future, they should have no objection to being bound by the district court order.” 

The Justice Department said in brief filed Tuesday that the court shouldn’t be asked to rule on a hypothetical question about the future. U.S. District Judge Anna Diggs Taylor had ordered the government to halt the warrantless surveillance. 

The National Security Agency program monitors international phone calls and e-mails to or from the United States when one party is believed to be a terrorist or to have terrorist ties. The government had said it sometimes needed to act without waiting for the secret court. The administration also has said the program has helped prevent terrorist attacks. 

“If al-Qaida is calling in to the United States, we want to know why they’re calling,” the president said while defending the program last year. 

A three-judge panel will hear the arguments in Cincinnati. The same panel in October ruled that the government could continue the monitoring while it appealed. 

Legal scholars and attorneys who have argued before the 6th Circuit say it’s difficult to characterize the court’s leanings on such issues. 

“It’s been pretty sharply divided on a number of issues, such as the death penalty,” said Carl Tobias, a law professor at the University of Richmond (Va.) who has been following this case. 

Of 14 judges in the circuit, eight were appointed by Republican presidents. On this panel, Judge Julia Smith Gibbons was appointed by President Bush, Judge Alice M. Batchelder by his father, and Judge Ronald Lee Gilman by President Clinton. 

The panel probably will not rule immediately, and its ruling could result in appeal to the U.S. Supreme Court or a review by the full 6th Circuit. The 6th Circuit includes Ohio, Kentucky, Michigan and Tennessee. 

The ACLU filed its lawsuit on behalf of journalists, scholars and lawyers claiming the program has made it difficult for them to do their jobs because they believe many of their overseas contacts are likely targets. Other groups have also filed challenges to the program in other courts; this case has proceeded the furthest. 


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