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Taking the ACLU Down on Wiretapping By: Tom Fitton
FrontPageMagazine.com | Wednesday, February 27, 2008

On February 19, the Supreme Court dealt a blow to the American Civil Liberties Union (ACLU) and its legal campaign against the National Security Agency’s warrantless wiretapping program.  According to the Associated Press: “The justices, without comment, turned down an appeal from the American Civil Liberties Union to let it pursue a lawsuit against the program that began shortly after the Sept. 11 terror attacks.”

You may recall that Judicial Watch has been intimately involved with this lawsuit from the outset. First, Judicial Watch sparked a media firestorm when it uncovered a potential conflict of interest on the part of the presiding district judge, Anna Diggs Taylor. After carefully inspecting Judge Diggs Taylor’s financial disclosure statements, Judicial Watch investigators discovered the judge serves as a Secretary and Trustee for a foundation that donated funds to the ACLU of Michigan, a plaintiff in the case.

According to her 2003 and 2004 financial disclosure statements, Judge Diggs Taylor served as Secretary and Trustee for the Community Foundation for Southeastern Michigan (CFSEM).  She was reelected to this position in June 2005. The official CFSEM website states that the foundation made a “recent grant” of $45,000 over two years to the ACLU of Michigan.

After Judge Diggs Taylor ruled in favor of the ACLU, Judicial Watch then filed an amicus curiae brief with appellate court in support of the surveillance program.  According to Judicial Watch’s court filing, Judge Diggs Taylor’s ruling “overstepped the limits of judicial authority.”

[The District Court] attempted to decide…very important constitutional questions without the benefit of anything approaching a well-developed factual record, conflated the plantiffs’ alleged First and Fourth Amendment injuries, and disregarded well-established precedent and ordinary rules of procedure,” Judicial Watch argued in its brief filed on October 24, 2007. “The result was not only the hasty and injudicious entry of a permanent injunction against an ongoing foreign intelligence gathering operation during a time of war, but also the patently flawed entry of summary judgment against the government. The District Court’s ruling must, respectfully, be vacated.”

Given that none of the plaintiffs could demonstrate that any of their conversations were actually intercepted by the government, their injuries were speculative and could not be considered by the court. 

Thankfully, the appellate court agreed with Judicial Watch’s legal arguments (which the Bush administration had failed to push) and overturned the lower court ruling, which prompted the ACLU’s unsuccessful appeal to the Supreme Court. 

A fight continues in Congress on how to regulate the president’s power to gather intelligence from overseas sources through a version of this program. It is good to see that the courts, thus far, have restrained themselves from interfering with this democratic process. 

Tom Fitton is president of Judicial Watch.

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