MB Civic

DETROIT, June 12 — A National Security Agency program that listens in on international communications involving people in the United States is both vital to national security and permitted by the Constitution, a government lawyer told a judge here on Monday in the first major court argument on the program.

But, the lawyer went on, “the evidence we need to demonstrate to you that it is lawful cannot be disclosed without that process itself causing grave harm to United States national security.”

The only solution to this impasse, the lawyer, Anthony J. Coppolino, said, was for the judge to dismiss the suit before her, an American Civil Liberties Union challenge to the eavesdropping program, under the state secrets privilege. The privilege can short-circuit cases that would reveal national security information, and it is fast becoming one of the Justice Department’s favorite tools in defending court challenges to its efforts to combat terrorism.

The Detroit case was filed in January on behalf of journalists, scholars, lawyers and nonprofit organizations who argued that the possibility of government eavesdropping interfered with their work. In remarks to reporters after the 90-minute argument, Anthony D. Romero, the A.C.L.U.’s executive director, called the government’s invocation of the state secrets privilege “Orwellian doublespeak.”

“They argued essentially that the N.S.A. program was off limits to judicial review,” Mr. Romero said.

The small courtroom was jammed for the argument, with a dozen people standing in the aisles and journalists sitting in the jury box.

In her presentation, Ann Beeson, the A.C.L.U.’s associate legal director, asked the judge, Anna Diggs Taylor of Federal District Court, to shut down the surveillance program based on publicly available information.

The case boiled down to two legal questions, Ms. Beeson said. The first is whether the plaintiffs have suffered the sort of direct injury necessary to establish that they have standing to bring suit. The second is whether President Bush was authorized by Congress or by the Constitution to violate the Foreign Intelligence Surveillance Act, a 1978 law that forbids surveillance of people inside the United States without a warrant.

The administration has acknowledged that it has not complied with the law but has said that a 2001 authorization to use military force against Al Qaeda and the president’s inherent constitutional powers allowed him to violate it.

The government’s main argument on Monday, repeated over and over, was that more facts are required but that more facts cannot be disclosed. Judge Taylor asked few questions but at one point appeared frustrated by this approach.

“You have conceded, have you not, that a program has been authorized?” she asked Mr. Coppolino.

He responded that the administration’s public defense of the program, including a 42-page white paper, had been too general to serve as the basis for judicial decision making.

“There is very much a difference between the existence of an activity and the details of that activity,” Mr. Coppolino said.

Even parts of the government’s brief that were said to demonstrate why further information about the program could not be disclosed have not been filed in court. Instead, the government “lodged” the brief and other classified papers at the Justice Department in Washington, inviting Judge Taylor to arrange to see them. At Monday’s hearing, she shook her head no when Mr. Coppolino asked her whether she had “had a chance to review our classified submission.”

Judge Taylor has scheduled a separate argument next month to consider the government’s motion to dismiss the case based on the state secrets privilege. While she could theoretically rule on the plaintiffs’ request to block the program before then, she is more likely to consider the two motions simultaneously.

Calling the plaintiffs’ position extreme, Mr. Coppolino said that the 1978 law could not constitutionally constrain the president when the nation’s safety was at risk.

“The president’s constitutional power doesn’t simply disappear when Congress enacts a statute,” Mr. Coppolino said. “Surveillance of an enemy is indeed a necessary incident of war.”

Ms. Beeson said the 1978 law, often called FISA, gave the president all the flexibility he needed. “If FISA didn’t work,” she said, “the proper procedure under our constitutional system was for the president to go back to Congress and ask it to amend the law.”

“Our constitutional system was set up to require the president to follow the law just like anyone else,” she added. “If our view of the separation of powers is extreme, then the Constitution is extreme.”

Mr. Coppolino also argued that the plaintiffs were not entitled to sue in the first place because they could not show they had been injured. “You don’t get standing,” he said, “simply because you say the president has a program and I think it might cover me.”

Ms. Beeson countered that her clients had suffered concrete harms.

“Journalists’ sources have dried up,” she said. And lawyers for people suspected of terrorism have had to resort to alternatives to phone calls and e-mail to ensure the confidentiality of their communications, she said. “They have had to make expensive oversees trips to gather evidence,” Ms. Beeson said.

Mr. Coppolino said the government was not able to clarify whether the plaintiffs’ fears were justified.

“The government cannot confirm or deny whether a particular individual is subject to surveillance or what the criteria is,” he said. “Indicating that someone is not subject to surveillance is itself revealing.”

Mr. Coppolino indicated that some plaintiffs might have more reason to be concerned than others. Lawyers who represent suspected terrorists, he said, “come closer to being in the ballpark of the terrorist surveillance program.”

But here, too, he said, “the critical facts necessary to adjudicate” the standing question “are subject to the state secrets privilege.”

As Ms. Beeson concluded her argument, which had been uninterrupted by questions, Judge Taylor called her back to the lectern.

“Talk about standing some more,” Judge Taylor said, perhaps identifying the part of the plaintiffs’ case she considered the most difficult.