Judge: Warrentless wiretaps violate Constitution

The White House's "war on terror" was dealt a blow on Aug. 18 when a federal judge in Detroit ruled that a controversial wiretapping program authorized by President Bush was unconstitutional and ordered its immediate halt. "It was never the intent of the framers [of the Constitution] to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights," wrote US District Judge Anna Diggs Taylor in her decision. Taylor held that the wiretapping program violates the First and Fourth Amendments to the Constitution, which respectively protect free speech and prohibit unlawful searches. She also held that the program, formally known as the Terrorist Surveillance Program and run by the National Security Agency (NSA), violates the federal Administrative Procedures Act and the separation-of-powers doctrine. "There are no hereditary Kings in America and no powers not created by the Constitution. So all 'inherent powers' must derive from that Constitution…. The public interest is clear, in this matter. It is the upholding of our Constitution," she wrote. White House reaction was immediate. Press Secretary Tony Snow said the Bush administration "couldn't disagree more with this ruling." He said the program carefully targets communications of suspected terrorists and "has helped stop terrorist attacks and saved American lives." The Justice Department launched an appeal within hours of Taylor's ruling. It said it would request a stay during the appeals process, arguing that the secret surveillance program is crucial to stopping terrorists. The American Civil Liberties Union, which brought the lawsuit along with other groups and individuals, said it opposed the stay but agreed to delay enforcement of the injunction until the judge hears arguments on Sept. 7. "We have confidence in the lawfulness of this program," Attorney General Alberto Gonzales said in Washington. "We're going to do everything we can do in the courts to allow this program to continue." The spying program has ignited broad controversy. Some assert it violates fundamental American rights; others contend it is legal and necessary to protect national security in an age of terrorism. After the surveillance program came to public attention in December, in an article in the New York Times, the government admitted that it had launched the initiative after the Sept. 11 terrorist attacks. NSA personnel listen in on phone calls and obtain emails into and out of the US involving those it suspects of being affiliated with terrorists. The program bypasses the Foreign Intelligence Surveillance Court, created in 1978 after revelations of government spying abuses. In the last 28 years, that court has approved thousands of wiretapping requests and rejected very few. The lawsuit was filed in January on behalf of journalists, scholars and lawyers who say the program has made it difficult for them to do their jobs. They believe many of their overseas contacts are likely targets of the program, which monitors international phone calls and emails to or from the US involving people the government suspects have terrorist links. The ACLU says the 1978 Foreign Intelligence Surveillance Act, which set up the secret court to grant warrants for such surveillance, gave the government enough tools to monitor suspected terrorists. But the government says it can't always wait for a court to take action. It says the NSA program is well within the president's authority but proving that would require revealing state secrets. Taylor, an appointee of President Carter, specifically rejected the contention that the president had inherent authority to create such a wiretapping program. Taylor said that if the program were allowed to continue, it would irreparably harm the rights of the plaintiffs, which included the American Civil Liberties Union, the Council on American-Islamic Relations, Greenpeace and individuals, including scholars and attorneys. Taylor did award the Bush administration one victory last week: She dismissed the plaintiffs' challenge to the legality of federal mining for data in telephone and electronic communications. She agreed with the government that litigating that claim would violate its state-secrets privilege. The bulk of her decision, though, went against the government. In response to the assertion that the warrantless wiretapping program was necessary to the defense of the nation, Taylor quoted a 1967 decision of then-Chief Justice Earl Warren: "It would indeed be ironic if, in the name of national defense, we would sanction the subversion of… those liberties… which makes the defense of the nation worthwhile." Telecom repercussions Telecommunications and internet companies accused of working with the domestic eavesdropping program could be in for more legal headaches after Taylor's ruling. AT&T spokesman Walt Sharp declined to comment on the litigation, saying, "We're fully committed to protecting our customer's privacy, and beyond that, we don't comment on matters of national security." Verizon spokesman Eric Rabe said, "We believe that everything we've done here has been within the law." He added that it was too soon to say whether the court's ruling will attract more litigation. "There have been all kinds of opportunistic lawsuits since this story became public…. I've read the decision. But how it plays out, we'll have to wait and see." Officials at BellSouth did not return calls for comment. Political reactions While it is unclear if Taylor's ruling will survive the appeal process or whether the Bush administration will simply ignore the decision, spokespeople for the victorious plaintiffs were jubilant. ACLU Executive Director Anthony D. Romero described Taylor's overall ruling against the warrantless wiretapping as "a landmark victory against the abuse of power that has become the hallmark of the Bush administration." Dawud Walid, executive director of the Michigan chapter of the Council on American-Islamic Relations, another of the plaintiffs, said: "This is an affirmation that we have a government that is bound by laws, and this country is not ruled by a monarchy but by a democratic system of checks and balances." Reaction on Capitol Hill was, predictably, partisan. In a statement supporting the ruling, Rep. Jane Harman of California, the ranking Democrat on the House Intelligence Committee, said the "terrorists who are plotting against us would like nothing more than to see us erode our Constitution. We cannot hand them the victory they seek." Russ Feingold, the ranking member of the Senate Judiciary Committee, has been trying to get Congressional support for censure of President Bush for his authorization of the NSA surveillance program since March. "Today's district court ruling is a strong rebuke of this administration's illegal wiretapping program," Feingold said on Aug. 17. "The president must return to the Constitution and follow the statutes passed by Congress. We all want our government to monitor suspected terrorists, but there is no reason for it to break the law to do so. The administration went too far with the NSA's warrantless wiretapping program. Today's federal court decision is an important step toward checking the president's power grab." Senate Majority Leader Bill Frist (R-TN) called the decision "unfortunate." He said, "Terrorists are the real threat to our constitutional and democratic freedoms, not the law enforcement and intelligence tools used to keep America safe." The Republican National Committee issued a more strident statement, headlined "Liberal Judge Backs Dem Agenda to Weaken National Security."