[JURIST] The American Civil Liberties Union (ACLU) [advocacy website] asked a federal appeals court Tuesday to uphold a lower court ruling [brief, PDF; press release] that the NSA domestic surveillance program [JURIST news archive] is unconstitutional, arguing that the program is an unconstitutional intrusion on privacy and free speech and oversteps the limits of executive power. In August, US District Judge Anna Diggs Taylor ruled the program unconstitutional [opinion, PDF; JURIST report] as a violation of privacy rights, and in October, the US Court of Appeals for the Sixth Circuit ruled [PDF text; JURIST report] that the US government can continue to operate the program pending appeal.

In its brief, the ACLU argued:

The Program violates the principle of separation of powers because it involves surveillance that Congress, in a valid exercise of its own constitutional power, has expressly prohibited. The President has no authority to violate the law. Because it operates entirely without judicial supervision, the Program also violates the Fourth Amendment. No exception to the First Amendment's warrant requirement is applicable here, and the government's disregard of FISA – a statute that has proved workable for almost thirty years – is manifestly unreasonable. Because the Program intercepts protected communications without judicial oversight, the Program also violates the First Amendment. …

The government seeks not simply to dismiss this case but to prevent any court from reviewing the legality of the Program. Its view of the standing doctrine would prevent anyone from ever challenging the Program. Its view of the Fourth Amendment would give carte blanche to the President not only to wiretap telephones and comb through e-mails but also to search homes. Its view of the state secrets privilege could shield virtually any national security policy from judicial scrutiny. And, perhaps most disturbingly, the government's sweeping theory of executive power would allow the president to violate any law passed by Congress. This theory presents a profound threat to our democratic system.

Another lawsuit, a class action brought by the Electronic Frontier Foundation against AT&T [JURIST report], alleges that AT&T violated US citizens' rights to privacy and several federal statutes when it permitted the NSA to use its infrastructure to wiretap individuals without first obtaining warrants. The Ninth Circuit agreed last week to consider an appeal in that case. AP has more.