[JURIST] The US Department of Justice [official website] on Monday argued in court for the first time that the Bush administration's warrantless domestic surveillance program [JURIST news archive] is legal. Anthony J. Coppolino, special litigation counsel for the DOJ, argued in the US District Court for the Eastern District of Michigan [official website] that a lawsuit against the National Security Agency [official website] should be dismissed because proving that the program falls within the president's authority would reveal state secrets. The DOJ is relying on the state secrets privilege established in a 1953 US Supreme Court case, United States v. Reynolds [text]. The DOJ is also asserting the state-secrets privilege in a similar case filed in New York [JURIST report].
The plaintiffs, who are journalists, scholars and lawyers represented by the ACLU [advocacy website], argue that the program violates their rights to privacy and free speech [complaint, PDF; ACLU materials], and that enough information has been made public about the program for the court to determine whether it is legal. The NSA has acknowledged warrantless eavesdropping on international phone calls made from within the US, but the Bush administration contends the program is legal under Bush's inherent powers as commander-in-chief and under a 2001 congressional resolution [PDF text] authorizing the use of force against al Qaeda and other terrorist organizations. Although Coppolino said the DOJ demonstrated in a classified court filing that the program is narrowly targeted at al Qaeda, US District Judge Anna Diggs Taylor [official profile] has not reviewed that document because she must travel to Washington DC to see it. Monday's arguments came during a hearing on the ACLU's motion for partial summary judgment [PDF text]. AP has more. The Detroit News has local coverage.
5:59 PM ET - Taylor said Monday that she would not make an immediate decision on the ACLU's motion, deferring her ruling. Another hearing in the case has been scheduled for July 10. Reuters has more.