Someone Had To Do It

But Andrew Cohen Says Domestic Spying Lawsuits Face Tough Battle

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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The two complaints filed earlier this week to stop the Bush Administration's domestic spying program need a lot of help to succeed. In fact, it will take something akin to a legal Hail Mary just to get the federal courts to order the government to turn over some of its wiretap information, never mind actually get the program halted. But miracles happen sometimes, even in the law, and the plaintiffs in the New York and Michigan cases at least have a little momentum going for them.

They arrive on the scene, making their claims, at a time when there is a great deal of distrust among judges for the national security claims offered by administration officials. The deference initially given to the White House by genuflecting federal judges just after the terror attacks of 9/11 has given way to skepticism and in some instances downright cynicism. No more will the courts simply take at face value the "national security arguments" made by shadowy government agents — they have been burned too often since 2001 by hyperbole, exaggeration and sometimes even outright lies.

But that's about all the American Civil Liberties Union and the Center for Constitutional Rights have on their side as they begin a quixotic quest to open up and then shut down the administration's chamber of secrets. They contend that the spy program "is substantially impairing" their "ability to obtain information from sources abroad, to locate witnesses, to represent their clients, to conduct scholarship, and to engage in advocacy." Arrayed against them is a White House that has made it clear it will cry "national security" and "executive power" and "war on terror" at every step of this process. In law schools, geeky constitutional law professors conjure up fact patterns like this to stump their overwhelmed students. Only this time it's real.

The complaints are fascinating because they offer rare insight into what the domestic spy program really does and what types of people may be affected by it. In the Michigan complaint, for example, we learn, some of us for the first time, precisely how the surveillance occurs. "NSA-controlled satellite dishes," some in the States, "access communications that are transmitted via satellite," the complaint alleges. Also, according to the plaintiffs, "the NSA works with telecommunications companies to access communications that pass through switches controlled by these companies." Finally, they charge, "the NSA works with Internet providers and telecommunications companies to access communications transmitted over the Internet."

Once the NSA has access to the information, the complaint continues, "it uses artificial intelligence aids to search for keywords and analyze patterns in millions of communications at any given time." You do not need to be an expert in technology to realize just how broad that level of surveillance could be. And you do not need an MBA to acknowledge that those private companies that are cooperating with the NSA aren't going to be asking too many questions on behalf of any of the targets of the surveillance. Indeed, through these methods, the Michigan complaint alleges, "the NSA intercepts the contents of the communications of as many as a thousand people inside the United States at any one time."