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Lawyer: NSA Surveillance Program Justified

Editor And Publisher | September 6 2006

A government lawyer used a dramatic scenario of a nuclear attack on Washington to illustrate his arguments Tuesday in defense of President Bush's warrantless wiretapping program.

Anthony Coppolino, a special litigation counsel based in Washington, said the Constitution gives Bush the right as commander in chief to do what is necessary to surveil terrorists and stop them from attacking the United States, including interrogating someone who might have information about an imminent attack.

"Suppose for example the president obtains intelligence that a nuclear bomb was planted ... right there in Washington, and the only way he was going to find out whether that was going to happen was to grab the person and interrogate him," Coppolino said in U.S. District Court in Manhattan. "Would that be in his constitutional authority? I would say so."

Coppolino used the argument to justify a Bush administration decision after the Sept. 11, 2001 terrorist attacks to monitor international phone calls and e-mails to or from the United States involving people suspected of terrorist links.

He was responding in oral arguments before U.S. District Judge Gerard E. Lynch to a lawsuit brought by the Center for Constitutional Rights seeking to stop Bush and government agencies from conducting warrantless surveillance of communications in the United States.

Attorney Michael Avery for the Center for Constitutional Rights brushed off the "ticking bomb hypothetical," saying the example did not prove the legality of an unprecedented intrusion on Constitutional rights.

"Balancing the need for enforcement against the protection of civil liberties is not something our Constitutional system entrusts to the chief executive," Avery said.

Coppolino's arguments grew ever more dramatic as he was challenged by the judge over the limits of presidential authority and whether Bush could eavesdrop on the phone conversations of Americans without Congressional and judicial approval.

He said the surveillance program was essential in the war against terrorism in finding the enemy and was "as close to a modern battlefield as you can get: Where is al-Qaida? Where do they want to hit us?"

Lynch cited complaints that the surveillance program intrudes on Americans and was operating in the face of a Constitution that generally permits Congress to overrule the president with a two-thirds majority.

Coppolino said Bush did not need to check with Congress first to monitor phone conversations of suspected terrorism operatives because the Constitution directly gives him the "power to detect the activities of an enemy attempting to attack the United States."

The arguments came after U.S. District Judge Anna Diggs Taylor in Detroit struck down the National Security Agency program last month, finding it unconstitutional. The government has appealed her ruling in the separate lawsuit.

Lynch hinted that the lawsuits could be consolidated. He did not indicate when he would make a ruling.


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