ACLU seeks to pursue challenge

What's to stop Bush from going ahead without the secret court, the ACLU asks.
CINCINNATI (AP) -- The American Civil Liberties Union on Friday urged a federal appellate court to keep alive its challenge to the Bush administration's domestic spying program, saying the president still claims the authority for the warrantless surveillance.
The Bush administration said Thursday the case is moot and should be dismissed since the surveillance now is monitored by a secret court.
"The government continues to insist, however, that the president had and continues to have the authority to conduct the program outside of [the secret court]," said an ACLU brief filed with the 6th U.S. Circuit Court of Appeals.
The government appealed to the court after a federal district judge ruled that the program was unconstitutional. Oral arguments are scheduled here for Wednesday.
Attorney General Alberto Gonzales said last week that the secret panel of judges who oversee the Foreign Intelligence Surveillance Act was reviewing and approving applications to spy on people believed to be linked to al-Qaida.
"There is, therefore, no longer any live genuine controversy to adjudicate," the Justice Department wrote in its brief filed Thursday.
Here's the concern
But the ACLU said that without more information about what the secret court has authorized, it can't determine if current activities were lawful. It said the Bush administration might return to surveillance outside the secret panel without a court order against it.
The ACLU also asked the court Friday to make public or give its attorneys access to secret materials in the case filed by the government as classified.
The National Security Agency program, secretly launched in 2001, monitors international phone calls and e-mails to or from the United States when one party is believed to have terrorist links. It became public in December 2005.
The administration has said the program has been an important tool in the fight against terrorism and has helped prevent attacks.
The ACLU sued last year, and a federal judge in Detroit ruled in August that the program was unconstitutional, violating rights to free speech and privacy and the separation of powers. A 6th Circuit panel in October ruled that the administration could keep the program in place while it appealed.

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