The New York Civil Liberties Union and the American Civil Liberties Union today submitted legal papers requesting permission to file a friend-of-the-court brief in the Second Circuit Court of Appeals arguing that the National Security Agency’s warrantless surveillance program was unlawful and that the president has no inherent authority as Commander-in-Chief to engage in such unauthorized spying on people in the United States.
The filing is part of a criminal case involving the prosecution and conviction of two Albany residents, Mohammed Hossain and Yassin Aref. Aref and Hossain were convicted late last year on charges of money laundering and providing material support to terrorism; their prosecutions were the result of a sting operation that, according to reports published in the New York Times in 2005, may have been made possible by warrantless surveillance. Aref and Hossain argued that the prosecution was improper because it relied on this unlawful surveillance program.
Today’s brief backs up that argument by charging that the Foreign Intelligence Surveillance Act prohibits, unless otherwise authorized by statute, warrantless surveillance of the sort that may have been undertaken in the case of United States v. Aref. The brief argues that the President of the United States has no inherent authority even as Commander-in-Chief to violate an act of Congress, and that the president’s attempt to invoke his authority as the country’s military leader to conduct surveillance of civilians violates the constitutional principle restricting the imposition of military authority over the civilian population.
“It is a fundamental principle of our country that the president cannot use his authority as Commander-in-Chief to violate the rights of civilians off the battlefield,” said NYCLU Executive Director Donna Lieberman. “That President Bush was authorized to conduct war in Afghanistan did not give him the right to spy without warrants in the United States.”
The brief also argues that even if the president did have the authority to disregard an act of Congress, that authority would be subject to the limitation imposed by the Fourth Amendment, which would prohibit surveillance of individuals in the United States without a warrant.
“The possibility that the investigation and prosecution of the defendants was tainted by illegal NSA surveillance raises concerns that merit serious consideration by the Court of Appeals,” said Melissa Goodman, staff attorney with the ACLU’s National Security Project. “If the defendants were in fact the victims of the NSA’s judicially unsupervised surveillance program, that surveillance violated the law and the Constitution.”