Judge rules surveillance wiretaps illegal

Judge rules surveillance wiretaps illegal
NSA program monitoring calls between U.S., foreign countries 'unconstitutional'

A federal judge on Thursday struck down President Bush’s warrantless surveillance program, saying it violated the rights to free speech and privacy, as well as the separation of powers enshrined in the Constitution.

U.S. District Judge Anna Diggs Taylor in Detroit is the first judge to rule on the legality of the National Security Agency’s program, which the White House says is a key tool for fighting terrorism that has already stopped attacks.

“Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution,” Taylor wrote in her 43-page opinion.

Read The Court's Entire Ruling (.pdf)

The administration said it would appeal to the 6th U.S. Circuit Court of Appeals in Cincinnati.

“We’re going to do everything we can do in the courts to allow this program to continue,” Attorney General Alberto Gonzales said at a news conference in Washington.

White House 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.”

Taylor ordered an immediate halt to the program, but the government said it would ask for a stay of that order pending appeal. The American Civil Liberties Union, which brought the suit, said it would oppose a stay but agreed to delay enforcement of the injunction until Taylor hears arguments Sept. 7.

The ACLU filed the lawsuit 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 e-mails to or from the U.S. involving people the government suspects have terrorist links.

The ACLU says the 1978 Foreign Intelligence Surveillance Act, which set up a secret court to grant warrants for such surveillance, gave the government enough tools to monitor suspected terrorists.

The government argued that the NSA program is well within the president’s authority but said proving that would require revealing state secrets.

The ACLU said the state-secrets argument was irrelevant because the Bush administration already had publicly revealed enough information about the program for Taylor to rule. The adminstration has decried leaks that led to a New York Times report about the existence of the program last year.

Taylor, a Carter appointee, said the government appeared to argue that the program is beyond judicial scrutiny.

“It was never the intent of the framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights,” she wrote. “The three separate branches of government were developed as a check and balance for one another.”

Administration officials said the program is essential to national security. The Justice Department said it “is lawful and protects civil liberties.”

In Washington, Republicans expressed hope that the decision would be overturned, while many Democrats praised the ruling.

“It is disappointing that a judge would take it upon herself to disarm America during a time of war,” Rep. Pete Hoekstra, R-Mich., chairman of the House Intelligence Committee, said in a statement.

West Virginia Sen. Jay Rockefeller, the top Democrat on the Senate Intelligence Committee, said the decision shows the executive branch needs more external reviews.

“The administration is wrongly convinced that it can run the country without Congress or oversight. This is their tragic failure, and the courts understand it,” Rockefeller said.

ACLU executive director Anthony Romero called Taylor’s opinion “another nail in the coffin in the Bush administration’s legal strategy in the war on terror.”

“At its core, today’s ruling addresses the abuse of presidential power and reaffirms the system of checks and balances that’s necessary to our democracy,” he told reporters.

One of the plaintiffs in the case, Detroit immigration attorney Noel Saleh, said the NSA program had made it difficult to represent his clients, some of whom the government accuses of terrorist connections.

Saleh, a leader in Michigan’s large Arab-American community, also said he believes many conversations between people in the community and relatives in Lebanon were monitored in recent weeks as people here sought news of their families amid the violence in the Middle East.

“People have the right to be concerned about their family, to check on the welfare of their family and not be spied on by the government,” he said.

Sen. Arlen Specter, R-Pa., the Senate Judiciary Committee chairman, is championing a compromise that would allow Bush to submit the surveillance program to the Foreign Intelligence Surveillance Court for a one-time test of its constitutionality.

But under Thursday’s ruling congressional approval would not be enough, said Richard Pildes, a professor at New York University School of Law.

Taylor suggests in her ruling that the program “would violate the Constitution even if Congress authorized it,” Pildes said.

“Until Congress actually addresses these questions, I would expect most appellate courts to be extremely reluctant to address many of the questions this judge was willing to weigh in on.”

While siding with the ACLU on the surveillance issue, Taylor dismissed a separate claim by the group over NSA data-mining of phone records. She said not enough had been publicly revealed about that program to support the claim and further litigation would jeopardize state secrets.

The lawsuit alleged that the NSA “uses artificial intelligence aids to search for keywords and analyze patterns in millions of communications at any given time.” Multiple lawsuits have been filed related to data-mining against phone companies, accusing them of improperly turning over records to the NSA.

The data-mining was only a small part of the Detroit suit, said Ann Beeson, the ACLU’s associate legal director and the lead attorney on the case.