ACLU Seeks to Expose War-Time Spying


ACRU Staff


June 9, 2010

The ACLU has filed suit in New York asking a court to ignore a federal law on wartime information gathering, ignore the fact that Congress has and is exercising supervision over this process, and put secret information on public display, where it will aid those who seek to kill Americans. The ACLU thinks this is the “constitutional” thing to do.

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The facts for this article, but not the legal conclusions, come from an article in the Courthouse News Service on 3 June, 2010. That article describes a lawsuit filed in New York against the Office of the Director of National Intelligence, the Justice Department, the National Security Agency and the Defense Department. The suit asks the federal court to order the government to produce documents concerning its “spying” on American citizens, as part of the war on terror.

What apparently caused the ACLU to bring the case is that it had filed several FOIA (Freedom of Information Act) requests for documents concerning the “spying” and the government did not turn over the documents. There is, as you might expect, a National Security exception in the FOIA, which other courts in other ACLU cases have used to deny relief.

Try to imagine, during WW II for example, any organization going to federal court to demand that the court force details of American spying on potential saboteurs inside the US be revealed in public. And, the ACLU has a track record of turning anything it can obtain into a public weapon against the government. Witness the photographs of covert CIA employees which ACLU-associated lawyers showed to imprisoned terrorists at Gitmo, in order to identify those employees.

In security matters, Congress by law has usually required that the most sensitive information not be given to the entire membership of the House and Senate Committees overseeing such matters. Instead, it has limited the access to such information to the Chairs and Ranking Members of such committees and to the leadership of both Houses.

These precautions are taken to minimize instances of Members of Congress blurting out in public essential information, such as that the CIA was tracking and targeting key enemy leaders through their cell and satellite phones, after which those phones immediately fell silent. Senator Leahy, now Chairmen of the Senate Judiciary Committee, was quietly removed from his intelligence responsibilities and earned the nickname, “Leaky Leahy,” for such a breech.

The last reason why this case should be thrown out on its ear is practical. The Fourth Amendment’s provisions concerning unreasonable search and seizure do not apply to the entire world and its entire population. This case concerns international, electronic communications. Such messages are transmitted through space, or through the oceans, both of which are public places not subject to US legal jurisdiction. There is no “expectation of privacy,” as the prior cases say, in a message coming from a stationary satellite, 23,400 miles in space.

Anyone who is sophisticated in technology can intercept such a message. If it happens to be the CIA, listening in to see if some international resident is encouraging someone in the US to blow up a shopping mall, that is entirely legal. That is not an actionable concern of any federal judge in any federal courthouse in the US.

The purpose of the ACLU is to impose self-created barriers to the effective prosecution of the war on terror. Since there is no legitimate basis for this particular attack, one would hope that in addition to denying relief, the court will impose hefty fees and costs awards against the ACLU and its attorneys for even filing this case.

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