In his July 11 column, The Denver Post's Al Knight cited a lawsuit brought by the American Civil Liberties Union (ACLU) against the National Security Agency (NSA) for its warrantless wiretapping program as an example of “the ongoing and unrelenting effort to turn the nation's federal judges into policymakers of last resort.” Knight suggested that the ACLU had decided that "[i]t is so much easier to simply file a court case" than to “try to repeal” legislation such as the Terrorist Surveillance Act (TSA). Contrary to Knight's assertion, the wiretapping at issue had not been conducted “under the controversial Terrorist Surveillance Act,” which, while opposed by the ACLU, was not introduced until after the ACLU filed its lawsuit and has not been enacted. The suit addressed an NSA program that had been conducted secretly since 2002; the program was detailed in a December 16, 2005, New York Times article, prompting the introduction of legislation such as the TSA.

Knight's column followed a July 6 decision by the U.S. Court of Appeals for the 6th Circuit holding that the plaintiffs -- journalists, academics, and lawyers who alleged that they “had a 'well founded belief' ” they were being spied upon -- lacked standing to bring the suit against the NSA for its program. The appeals court's decision covered an August 17, 2006, ruling by Detroit U.S. District Court Judge Anna Diggs Taylor, who agreed with the ACLU that the program was unconstitutional and had contravened the Foreign Intelligence Surveillance Act (FISA).

From Al Knight's column “Turning judges into policymakers should be big problem” in the July 11 edition of The Denver Post:

Meanwhile, Congress, the media and the public continue to ignore a less glamorous but much more important issue: namely, the ongoing and unrelenting effort to turn the nation's federal judges into policymakers of last resort.

The most recent example of this effort is to be found in a 6th Circuit Court of Appeals case decided earlier this month. In that case, a group of lawyers and journalists sued the National Security Agency, claiming they may have been wiretapped by the federal government under the controversial Terrorist Surveillance Act. The court decided that the case should be dismissed because the plaintiffs lacked legal standing to sue. The court found they had not suffered an “injury in fact,” let alone shown that the injury was inflicted by the federal government.

The American Civil Liberties Union was the loser in this case, but there have been many others in which one group or another has tried to expand the role of the courts so that unelected judges would be able to pick and choose preferred policies.

The ACLU would apparently like a world where it doesn't have to do any heavy lifting. If it doesn't like the Terrorist Surveillance Act, why try to repeal it? It is so much easier to simply file a court case alleging injuries that cannot be proven and invite the court to review the statute.

Contrary to Knight's suggestion that the ACLU took on a lawsuit against the domestic spying program so that it wouldn't “have to do any heavy lifting,” within days of the December 16, 2005, Times article revealing the program, the ACLU took the following actions:

• Filed a Freedom of Information Act (FOIA) request on December 20, 2005, for NSA documents about the program.

• Demanded on December, 21, 2005, that Attorney General Alberto Gonzales appoint a special counsel to investigate possible crimes committed under the program.

• Purchased ads about the program in the December 22 and December 29, 2005, editions of the Times.

• Issued a fact sheet regarding the program on December 29, 2005.

Moreover, the ACLU was one of two groups (the other was the Center for Constitutional Rights) to file a lawsuit against the program on January 17, 2006, as CNN reported. The ACLU lawsuit challenged the constitutionality of the warrantless wiretapping program as well as its conformance with existing law. According to the suit:

192. The Program violates plaintiffs' free speech and associational rights guaranteed by the First Amendment.

193. The Program violates plaintiffs' privacy rights guaranteed by the Fourth Amendment.

194. The Program violates the principle of separation of powers because it was authorized by President Bush in excess of his Executive authority under Article II of the United States Constitution and is contrary to limits imposed by Congress.

195. The Program violates the Administrative Procedures Act because the NSA's actions under the Program exceed statutory authority and limitations imposed by Congress through FISA and Title III; are not otherwise in accordance with law; are contrary to constitutional right; and are taken without observance of procedures required by law.

On March 16, 2006, Sen. Mike DeWine (R-OH) and three other Republican senators introduced legislation (Senate Bill 2455) that, as The Washington Post reported on March 17, 2006, was intended to “settle the debate over National Security Agency eavesdropping” that had erupted following the Times article about the program:

The Bush administration could continue its policy of spying on targeted Americans without obtaining warrants, but only if it justifies the action to a small group of lawmakers, under legislation introduced yesterday by key Republican senators.

The four senators hope to settle the debate over National Security Agency eavesdropping on international communications involving Americans when one of the parties is suspected of terrorist ties. President Bush prompted a months-long uproar when he said that constitutional powers absolve him of the need to seek warrants in such cases, even though the 1978 Foreign Intelligence Surveillance Act requires warrants for domestic wiretaps.

The program, begun in 2001, was first publicized late last year.

Further contradicting Knight's assertion that the ACLU would rather “file a court case” than “try to repeal” the law, the organization on March 16, 2006, distributed a press release and a letter to each senator opposing the TSA. On September 22, 2006, Sen. Mitch McConnell (R-KY) introduced related legislation (Senate Bill 3931) under the same title, “Terrorist Surveillance Act of 2006.” The ACLU on September 27, 2006, distributed a memorandum and on September 28, 2006, sent a letter to each senator opposing this new version of the legislation.

The 109th Congress enacted no TSA legislation before the session closed in 2006. On April 13 the administration submitted related legislation -- Foreign Intelligence Surveillance Modernization Act of 2007. The legislation, described in a Department of Justice fact sheet, is to be considered by the 110th Congress as part of the fiscal year 2008 intelligence authorization bill (Senate Bill 1538 in the Senate and House Resolution 2082 in the House). The House passed its version of the authorization bill on May 11 and referred it to the Senate on May 14. In its May 31 report on the bill, the Senate Intelligence Committee noted that it could not complete review of the proposal because the administration had not complied with requests for key documents related to the authorization of the warrantless surveillance program:

Foreign Intelligence Surveillance Act Modernization and Liability Defense

The Committee remains committed to giving careful consideration to the issues involved in the Administration's legislative proposal to amend the Foreign Intelligence Surveillance Act and the proposal to provide liability protection to telecommunications companies who are alleged to have assisted the Intelligence Community in carrying out the President's surveillance program.

The Committee's review of the Administration's proposals and possible alternatives cannot be completed, however, until it receives key documents at the heart of the surveillance program: the President's orders authorizing the warrantless surveillance and the Department of Justice opinions on the legality of the program. The Administration's refusal to satisfy these document requests span over a year and hampers the Committee's ability to move forward on the legislation before it.

The Committee is also concerned about continued Administration requests to limit access by Committee staff to information related to the program. Limited staff access impedes congressional oversight as well as the Committee's ability to consider legislation related to the Foreign Intelligence Surveillance Act. Access to the program should therefore be expanded to the Committee's professional staff, including all Members' designees.