Monday, January 23, 2006

The Legal Left's War on National Security

Good Article by Laksin

By Jacob Laksin January 23, 2006

No small leap of faith is required to imagine the Center for Constitutional Rights (CCR) and the American Civil Liberties Union (ACLU), those two bastions of the “legal Left,” as paladins of the Constitution and guardians of American legal norms. CCR, after all, has consistently opposed the enforcement of U.S. immigration statutes, even vying against restrictions on immigrants who “endorse or espouse terrorist activity.” The ACLU meanwhile has waged a concerted attack against all measures aimed at holding the enemies of American liberties—from radical Islamic mosques to terrorist suspects—to account.
But that has not kept both groups from posturing as the last line of defense against an oppressive and invasive American government. In their latest gambit, CCR and the ACLU this Tuesday filed twin lawsuits, one in New York and one in Detroit, seeking to terminate the Bush administration’s warrantless electronic surveillance of American citizens with suspected terrorism ties. In keeping with the groups’ longtime strategy, the lawsuits charge that the surveillance amounts to an “illegal and unconstitutional program.”

In effect—and presumably by design—the lawsuits constitute a full-bore assault on the country’s security apparatus. The New York suit, filed by the CCR, names President Bush; the Detroit suit, filed by the ACLU, the Council on American-Islamic Relations, and Greenpeace, as well as several individuals, including writer Christopher Hitchens, targets National Security Agency director Army Lt. Gen. Keith Alexander and the heads of all other major security agencies. To claims of unconstitutionality CCR attorney Rachel Meeropol, the granddaughter of executed spies Julius and Ethel Rosenberg, has added the further argument that the surveillance program impedes the center’s ability to represent its most prominent clients: the enemy combatants detained at Guantanamo Bay. The thrust of their arguments is jarringly clear: America lacks the fundamental right to defend itself.

The law is not on the plaintiffs’ side. As John Schmidt, a former associate attorney general in the Clinton administration, has convincingly argued, the principal source of authority for the two suits—the 1978 Foreign Intelligence Surveillance Act requiring court authorization of surveillance of individuals—fails to support their contentions. Schmidt has noted that the supervisory court established by that law, the Foreign Intelligence Surveillance Court of Review, has most recently upheld the president’s authority to conduct warrantless searches of suspected members of foreign terrorist groups. Notwithstanding the suits’ claims to the contrary, any objective interpretation of legal precedent argues that the NSA surveillance program falls well within the president’s constitutional prerogatives.
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