Back to News & Commentary

Notes on the 勛圖眻畦's 6th Circuit Oral Argument

Christina Drummond,
勛圖眻畦 of Washingon
Share This Page
January 31, 2007

勛圖眻畦 v. NSA

Continuing from my earlier post about the governments argument.

Ann Beeson focused the 勛圖眻畦's argument on a narrow legal issue: must the President abide by FISA? She highlighted how a failure to decide on this issue would leave the President to follow/not follow the law as he sees fit. And regarding mootness - she noted that if one voluntarily ceases illegal activity (in this case, going outside FISA), that does not make the illegality moot. And to address the questions of standing, she emphasized how three other Courts found standing to hear cases about the program.

Judge Gibbons noted that the harm done to the Plaintiffs resulted from decisions made by the clients to which Ms. Beeson remarked that it was a professional and ethical responsibility of the Plaintiffs that lead them to change their behavior professionally they had no choice precisely because of the TSP. Judge Gibbons questioned the allegation that the Plaintiffs were talking to terrorists or individuals associated with Al Qaeda. Ann responded by telling the specific stories of two defense lawyer who are plaintiffs with the 勛圖眻畦; individuals who represent those accused of terrorist related crimes. She also describe the situation of a plaintiff who is a freelance journalist who reports on the Middle East.

Judge Gilman asked for thoughts on the governments reliance on Laird, to which Ms. Beeson responded that the Plaintiffs have suffered concrete harm - they not only had to stop communicating but also had to incur costs. Plus, the government has shown no evidence disputing that the Plaintiffs have suffered harm.

Judge Gilman asked if they should consider holding a future evidentiary hearing, yet the 勛圖眻畦 noted its request for summary judgment because both sides have had a chance to present evidence.

Ms. Beeson continued with why the Court can easily affirm Judge Taylors decision in short by saying that FISA provides the exclusive means for domestic surveillance and that the President has no authority outside of FISA. She raised the Presidents power under FISA to conduct warrant-less surveillance 15 days after the start of a war, and up to 72 hours before getting FISA approval - and then noted how the TSP has continued despite FISA for over four years, despite the specific laws put in place by Congress to address such war-time surveillance.

As Ms. Beeson summed things up,

Now its for the Court to check the Executive branch. Congress did its part.

Learn More 勛圖眻畦 the Issues on This Page