In another case at federal district court in San Francisco last week, the CCR, which represents hundreds of "enemy combatants" at Guantánamo Bay, Cuba, argued that the NSA's program of warrantless surveillance is unconstitutional.
"It is virtually certain that the NSA spied on our confidential communications with our clients as well as conversations with other American attorneys outside of the US," says Vincent Warren, CCR executive director.
Meanwhile, the ACLU last week filed legal papers with the Foreign Intelligence Surveillance Court (FISC) – the special court set up to decide whether such wiretaps are lawful and can be implemented – seeking the legal opinions upon which that court bases its decisions.
ACLU attorneys argue that the only thing known about those opinions has come from administration officials, and that those officials are not disinterested parties in a debate about the appropriate reach of executive branch surveillance.
"The public has a right to firsthand information about what the court permitted and what it disallowed," says Jameel Jaffer, director of the ACLU's national security project. (Over the years, the secretive FISC has rarely denied wiretap requests.)
Just before they scattered for their August break, members of Congress made it easier for government agencies to eavesdrop on Americans in the name of fighting terrorism, raising once again the issue of domestic surveillance without a court warrant.
The administration characterized the just-passed change to the 1978 Foreign Intelligence Surveillance Act (FISA) as a way of keeping up with modern technology that didn't exist when the act was passed nearly 30 years ago: e-mail, the Internet, cellphones, and fiber-optic cables. Without the new law, President Bush said in signing it last week, US intelligence agencies would be "missing a significant amount of foreign intelligence that we should be collecting to protect our country."