US asks for dismissal of NSA wiretapping suits

DETROIT, May 28: The US government has asked a pair of federal judges to dismiss legal challenges to the Bush administration's controversial domestic eavesdropping program, arguing any court action in the cases would jeopardise secrets in the ongoing war on terrorism.

Rights activists, who argue the National Security Agency's wiretapping violates the rights of US citizens, said the Bush administration's position threatened constitutional checks on the power of the presidency.

''The Bush administration is trying to crush a very strong case against domestic spying without any evidence or argument,'' said Shayana Kadidal, an attorney with the New York-based Center for Constitutional Rights, which brought one of the parallel lawsuits against the NSA program in January.

''I think it's a clear choice: can the president tell the courts which cases they can rule on? If so, the courts will never be able to hold the president accountable for breaking the law,'' he said.

Filed just before a midnight yesterday deadline and only partly made public, the arguments by the Justice Department marked the latest skirmish in a battle over an NSA program to listen in on international communications involving Americans.

President George W Bush said in December he had authorised the eavesdropping without a court order shortly after the September.

11 attacks in order to track suspected communication from al-Qaeda operatives. US officials have since declined to provide details on how widely the NSA wiretaps have been used or what communications have been intercepted.

In asking federal judges in Detroit and New York to throw out challenges to the eavesdropping, the Bush administration invoked a doctrine known as the ''state secrets privilege'' it has used to head off other court action on its spy programs.

The claim was accompanied by an affidavit by Director of National Intelligence John Negroponte, who said disclosure of any information about the NSA's ''Terrorist Surveillance Program'' would ''cause exceptionally grave damage to the national security of the United States.'' Negroponte used the same language earlier this month in an effort to quash a lawsuit over government eavesdropping filed in federal court in San Francisco by the Electronic Frontier Foundation, a privacy rights group.

'CHILLING EFFECT'

The administration said the case before Judge Gerard Lynch in New York could not proceed without ''revealing to the very adversaries we are trying to defeat what we know about them and how we are proceeding to stop them.'' Government lawyers made the same argument in an attempt to scuttle the parallel lawsuit brought by the American Civil Liberties Union being heard in Detroit.

''The government believes that state secrets gives it the power to shut down litigation,'' said Jameel Jaffer, a lawyer involved in the ACLU lawsuit.

The civil rights activists behind the two cases argue the eavesdropping violates the privacy and free speech rights of US citizens and have asked the courts to order it shut down.

Both suits contend US officials have already disclosed enough for judges to rule that the recent wiretapping skirted the requirements of a 1978 surveillance law.

Both lawsuits also argue the NSA program threatens the ability of defense lawyers in terrorism-related cases to speak freely with their clients, a so-called chilling effect.

''Plaintiffs cannot credibly claim that they face any added marginal chill of surveillance ... when their clients facing terrorism-related investigations or charges may be subject to surveillance pursuant to other means,'' the government said.

A fuller, classified version of the government's argument for dismissal is being held in a secure location in Washington awaiting review by the courts, the Justice Department said.

The ACLU suit is being heard by Detroit Judge Anna Diggs Taylor, who has scheduled the first hearing for June.

REUTERS