JUAN GONZALEZ: The judge’s decision, according to some analysts, would also be almost a prevent defense against the current legislation that Senator Specter is trying to put through in the Senate on the government surveillance program. Could you talk about that?

GLENN GREENWALD: Yeah. I think that's actually, you know, one of the most significant parts of the ruling is, you know, there's legislation pending, and since it was agreed to by the White House and Specter, it has a good chance of passing, which would all but eliminate restrictions on the President's ability to eavesdrop on Americans. That’s its purpose, is to legalize what this administration has been doing, because they know that this program violates the law, as it's currently written.

And this court ruling essentially prevents that strategy, because it concluded that warrantless eavesdropping, eavesdropping on Americans in secret and without any restrictions, violates the Constitution, the Fourth Amendment and the First Amendment, and since that practice is unconstitutional, no congress, no congressional statute could authorize it, because Congress can't empower the President to do something unconstitutional. And the ruling likely means that that Specter bill would be dead on arrival, that it would be an unconstitutional bill, and it proposes to authorize the President to do things that the Constitution prohibits.

AMY GOODMAN: Now, there was one argument that the judge did not accept. Can you explain that, Glenn Greenwald?

GLENN GREENWALD: Yes. There was a part of this case brought by the ACLU that seeks to challenge not only the legality of warrantless eavesdropping, but also of the data mining program that USA Today reported a couple of months ago, which suggests that the National Security Agency has a program to collect data that chronicles every domestic telephone call, which Americans make or receive. And the administration argued that for the court to try and examine that program and to rule on the legality of that program would require the disclosure of state secrets. And unlike in the warrantless eavesdropping case, where the government has already confirmed publicly that that program exists, the government has never confirmed this program exists at all, for data mining, and so the court accepted the argument that to try and rule on the legality would be to jeopardize national security, and therefore dismissed that part of the case.

JUAN GONZALEZ: And, Glenn, there was also the whole issue of standing. The government had argued that the folks who brought this lawsuit didn't even have legal standing, because they couldn't prove that they were directly affected by the surveillance program. How did the judge deal with that?

GLENN GREENWALD: Yeah, that's probably the biggest hurdle that this lawsuit faced from the beginning, and probably it’s the one that's most vulnerable on appeal. You know, U.S. citizens can’t just run into court and challenge laws. They have to show that the laws have been directly harming them. And the problem here is that the Bush administration has been eavesdropping in complete secrecy. Congress has never investigated how they've used this power, and so nobody knows who's been eavesdropped on. And so the problem is, how do you ever challenge a law that nobody can ever prove has been used against them?

And what the ACLU did was created a rather creative strategy that the court accepted, which said that these plaintiffs are people who in their profession are required to communicate with people in the Middle East, including those suspected of terrorist ties. The plaintiffs include lawyers who represent suspected terrorists. They have to talk to witnesses over in the Middle East, whom the Bush administration might find suspicious. They are professors who do research that requires the same thing.

And what they allege is that because the world knows that the Bush administration is eavesdropping on anyone they want, in secret, with no judicial oversight, people have stopped talking to them. Their clients aren't open in how they communicate. Witnesses won’t talk to them. Nobody will talk to scholars and researchers, and therefore there's been actual harm to their ability to carry out their professional duties, and that actual harm confers on them the authority to challenge this law.

AMY GOODMAN: We're talking to Glenn Greenwald, who wrote the book, How Would a Patriot Act? He’s a constitutional law attorney who specializes in presidential power. When we come back from break, Glenn, I want to ask you about this AIPAC ruling and what it means for freedom of the press.

AMY GOODMAN: Our guest is Glenn Greenwald. His book is called How Would a Patriot Act? He also runs a blog called “Unclaimed Territory.” Glenn, I wanted to ask you about another recent court ruling. Last week, a federal judge ruled private citizens can be prosecuted if the government decides they've received or disclosed information harmful to national security. The ruling comes in the case against two former employees of AIPAC, that’s American Israel Public Affairs Committee. They've been charged with passing on classified information to the Israeli government. Can you talk about the significance of the ruling and the implication for journalists?

GLENN GREENWALD: Sure. One of the things that I focus on in my book, actually, is that the Bush administration is in intent upon shutting down all methods of the American people learning about what the government is doing. And the two principal ways we've learned about what they're doing are whistleblowers, who are under vigorous attack, and the media. The reason we know about warrantless eavesdropping or secret prisons in Eastern Europe or the use of torture is because the media has found out about it and reported it. And this administration is intent upon criminalizing investigative journalism, by creating a way to put journalists in prison, for the first time in a long, long time in our country, who report on what the government is doing in secret.