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The Nation

Wiretap Project Ruled Illegal

Warrantless domestic eavesdropping violates the Constitution, a judge rules, sharply rebuffing claims that Bush has unwritten powers.

August 18, 2006|Henry Weinstein | Times Staff Writer

A federal judge in Detroit ruled Thursday that the government's warrantless domestic wiretapping program is unconstitutional and must be halted.

U.S. District Judge Anna Diggs Taylor held that the wiretapping program violates the 1st and 4th 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, violates the federal Administrative Procedures Act and the separation-of-powers doctrine.

It is the first time a federal judge has ruled that the controversial surveillance program violates constitutional rights. Similar challenges to the program are pending in New York, Oregon and Texas.

The Bush administration announced that it would appeal and asked that the decision be stayed. Taylor is expected to hold a hearing on that request Sept. 7. The plaintiffs have agreed to a temporary stay until then.

Congress is considering legislation on the wiretapping issue. Democrats hailed the ruling and Republicans criticized it.

Taylor, an appointee of President Carter, specifically rejected the contention that the president had inherent authority to create such a wiretapping program. "There are no hereditary kings in America and no powers not created by the Constitution," she said in her 44-page decision.

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. "The public interest is clear in this matter. It is the upholding of our Constitution," Taylor wrote.

U.S. Atty. Gen. Alberto R. Gonzales responded Thursday, "We respectfully disagree with the decision of the judge." He said he was confident that the wiretapping program was legal and added, "We will continue to utilize the program to ensure that America is safer." The challenge to the ruling will be heard by the U.S. 6th Circuit Court of Appeals, which is based in Cincinnati and covers Michigan, Kentucky, Ohio and Tennessee.

Taylor did award the Bush administration one victory Thursday: 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."

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.

"I believe very strongly that the president does have the authority to authorize this kind of conduct, particularly at a time of war," Gonzales said at his news conference following the judge's ruling.

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 e-mails into and out of the U.S. 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 government has attempted to have the suit in Detroit and the other challenges thrown out on two grounds. First, Justice Department lawyers maintain that the plaintiffs have not demonstrated that they have been injured by the program. Second, the government argues that even if the plaintiffs could show they are entitled to sue, the case should be barred because of the state-secrets privilege.

That privilege, laid out in a U.S. Supreme Court decision in 1953, prohibits disclosure of information in legal proceedings when there is a "reasonable danger" that the evidence would "expose military matters which, in the interest of national security, should not be divulged."

Judge Taylor ruled for the plaintiffs on both issues.

The judge said that if she were to accept the government's contention that the plaintiffs did not have standing to sue, a host of illegal acts by the government "would be immunized from 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."

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