A few weeks ago, a federal judge in Michigan ruled that the Bush wiretapping program was unconstitutional. A similar lawsuit is pending in New York City, where a judge yesterday heard argument on whether the program is legal.

At the argument, the government's lawyer dropped a potential bombshell. It has been generally assumed that the wiretapping program violates a law passed by Congress in 1978, the Foreign Intelligence Surveillance Act (FISA), which requires the government to get a warrant if it wants to listen in on phone conversations within the United States. These warrants are routinely issued by a special court like Halloween candy, and if the government faces an emergency and it can't get the paperwork together fast enough, it can actually get the warrant after-the-fact, something that routine police officers cannot do in searching your home.

Lawyers know that you can't make every conceivable argument to a judge and that you stick with your strongest arguments. The government in the past did not try to argue that the surveillance program was consistent with FISA, arguing more broadly that the president's authority to wage war trumps any statute. Now the government has perplexed the judge in suggesting that the wiretapping program does not violate FISA. Since the lawyer for the government revealed this position in court for the first time and did not set forth this argument in writing beforehand (the usual way to present your arguments), I have no idea what he's talking about. Sometimes, when someone is on the defensive in court, the best offense consists of arguing that black is white, and that the roll of Scotch Tape is really a court stenographer's machine.

So, in order to get what it wants, the administration is presenting the judge with a doomsday scenario. According to Associated Press, "A government lawyer used a dramatic scenario of a nuclear attack on Washington to illustrate his arguments Tuesday in defense of President Bush's warrantless wiretapping program. Anthony Coppolino, a special litigation counsel based in Washington, said the Constitution gives Bush the right as commander in chief to do what is necessary to surveil terrorists and stop them from attacking the United States, including interrogating someone who might have information about an imminent attack. 'Suppose for example the president obtains intelligence that a nuclear bomb was planted ... right there in Washington, and the only way he was going to find out whether that was going to happen was to grab the person and interrogate him,' Coppolino said in U.S. District Court in Manhattan. 'Would that be in his constitutional authority? I would say so.'"

This doomsday argument does not take into account how the government can get warrants after the fact. Doomsday scenarios also do not trump day-to-day application of the FISA law. There is always room to manuever in emergencies (such as a pending nuclear attack), but what about routine wiretapping of U.S. citizens, which is what these lawsuits are all about? The government's argument is broader than mere legalities. It says that the Bush administration should do whatever it wants.

September 6, 2006 Judge Hears Arguments on Federal Spying Program By ADAM LIPTAK New York Times

In a lively oral argument lasting almost three hours, a federal judge in Manhattan indicated yesterday that he had serious reservations about the legality of a National Security Agency surveillance program that monitors the international communications of people in the United States.

. . .

In a move that surprised Judge Lynch and lawyers who have been following the debate over the surveillance program, a government lawyer seemed to shift tactics to bring one more legal question within the scope of the privilege.

It has been widely assumed that the government has acknowledged that the surveillance program violates the Foreign Intelligence Surveillance Act, a 1978 law that requires the government to obtain a warrant from a secret court before wiretapping the international communications of Americans for national security purposes.

“We don’t agree,” the lawyer, Anthony J. Coppolino, said, “that the government has specifically conceded that point.” He added that the question could not be answered without endangering national security.

Statements from government officials that seemed to make the concession, Mr. Coppolino said, “may not be fully complete, as they have all indicated.”

Judge Lynch was taken aback by the shift in tactics. “This is the first time,” he said, “that I have understood that the government is taking the position that it is a contested issue whether this violates FISA.”

Judge Lynch said he did not recall anything in the government’s briefs on this argument. Mr. Coppolino was unable to provide a citation.

Judge Lynch was appointed by President Bill Clinton in 2000. He had been a professor at the Columbia University School of Law for more than 20 years, specializing in criminal law, constitutional theory and legal ethics.

He has not left the classroom behind entirely. The argument yesterday was studded with colorful hypothetical questions and echoes of the Socratic method. In response to one of his questions, about whether Yankees fans threatened with being strip-searched before entering the stadium would have standing to sue, Mr. Coppolino literally threw up his hands. “I don’t know,” he said, exasperated.

Judge Lynch appeared troubled by Mr. Coppolino’s argument that the president’s inherent constitutional power was enough to override Congressional enactments like the Foreign Intelligence Surveillance Act.

The judge also discounted the argument that a 2001 Congressional authorization to use military force granted the president the power to violate the surveillance act. “I’m not too impressed by that one,” he said.

Judge Lynch pressed Mr. Coppolino with a series of questions on the limits of presidential power in the face of Congressional prohibitions.

“So he can build a B-1 bomber if he wants to?” the judge asked. “If the president feels it necessary to break into a psychiatrist’s office to find out what Al Qaeda is up to, he can do that?”

Mr. Coppolino did not offer direct responses to those questions, but he was willing to say that the executive branch was sometimes entitled to take extraordinary steps. Asked if an American lawyer who had communicated with Al Qaeda could be grabbed on the street and interrogated about it, Mr. Coppolino responded, “I would say it is possible, depending on the scenario that is at stake.”

Judge Lynch did not appear persuaded. “It’s pretty uncharted ground that you’re asking me to get on,” he said. Then, apparently recalling the government’s state-secrets argument, he added, “Or, you’re asking me to stay off of it.”

Summing up, Judge Lynch said: “We’re debating a rather abstract but rather vital issue. Does the president have the power to do something despite the fact that Congress said ‘thou shalt not have this power’?”

He added, “I have no idea at this point how I’m going to come out on this.”