Suing the Spooks

NSA wiretap blowback

It's hard to mount a legal challenge to a highly classified government eavesdropping program when the list of potential plaintiffs is a state secret. So in order to challenge the National Security Agency's controversial program of warrantless wiretaps, the American Civil Liberties Union has assembled a group of journalists, academics, lawyers, and activists who argue that the program's very existence infringes on their First Amendment rights.

Because courts have recognized that free speech rights "require breathing space to survive," ACLU staff attorney Jameel Jaffer explains, they have often granted standing to challenge laws that burden those rights based on indirect chilling effects. Jaffer argues that since the disclosure of the NSA program his clients have been hampered in their communications with sources abroad, who may fear their confidential conversations will be subject to "indiscriminate, unchecked government surveillance."

Among the plaintiffs: Greenpeace; the Council on American-Islamic Relations; the National Association of Criminal Defense Lawyers; Hoover Institution scholar Larry Diamond, who studies democratic development around the world; James Bamford, author of books on the NSA; and pro-war pundit Christopher Hitchens, who in a statement submitted with the suit bridled at "being asked to trust the state to know best" when the "agencies entrusted with our protection have repeatedly been shown, before and after the fall of 2001, to be conspicuous for their incompetence and venality." A government response to the suit was expected by late March, with hearings likely to follow in April or May.