Friday, January 26, 2007; 1:48 AM WASHINGTON -- The Bush administration sought on Thursday to drop its appeal of a federal court ruling that concluded the government's domestic spying program is unconstitutional, saying the entire issue is moot since the surveillance now is monitored by a secret court.
Responding, lawyers for the American Civil Liberties Union said they would continue to push for their day in court since President Bush retains authority to continue the warrantless spying program.
The Justice Department's request has been expected since last week, when Attorney General Alberto Gonzales disclosed that the secret panel of judges who oversee the Foreign Intelligence Surveillance Act had begun reviewing and approving applications to spy on people believed to be linked to al-Qaida.
The ACLU's lawsuit against the terrorist surveillance program "is now moot," the Justice Department wrote in a 21-page brief, filed Thursday with the 6th U.S. Circuit Court of Appeals in Cincinnati. "The surveillance activity they challenge _ electronic surveillance not subject to the FISA court _ does not exist."
The Bush administration secretly launched the spy program, run by the National Security Agency, in 2001 to monitor international phone calls and e-mails to or from the United States involving people suspected by the government of having terrorist links. The program, which did not require investigators to seek warrants before conducting surveillance, was revealed in December 2005.
Last August, a federal judge in Detroit declared the program unconstitutional, saying it violates the rights to free speech and privacy and the separation of powers. In October, a three-judge Cincinnati appeals panel ruled the administration could keep the program in place while it appeals the Detroit decision.
The ACLU plans to file a response Friday, asking for the appeal to continue, said assistant legal director Ann Beeson. The watchdog group contends that Bush retains his authority to return to the warrantless program if it needs to.
"The case could not be less moot," Beeson said. "The case is not moot if there's any remote possibility that the government is going to violate the law again."