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Listen to the judge

August 18, 2006

IN THE LATEST JUDICIAL REBUKE of the Bush administration's tactics against terrorism, a federal judge in Detroit ruled Thursday that warrantless wiretapping of U.S. citizens violates the Constitution and federal law. The decision is an embarrassment for President Bush, but it also should be a source of shame for Congress.

Eight months ago, the New York Times reported that the National Security Agency was monitoring the international phone calls and e-mail messages of some Americans without obtaining a court order as required by the Foreign Intelligence Surveillance Act, or FISA. Several proposals for reining in the NSA operation were offered. But none of them were enacted before members of Congress left town for the summer.

Thursday's ruling by U.S. District Judge Anna Diggs Taylor should jump-start that stalled effort. It came in a lawsuit brought by the American Civil Liberties Union on behalf of journalists, lawyers and other scholars with business contacts in the Mideast.

Her decision convincingly rebuts two of the Bush administration's legal positions: that the president has the inherent constitutional authority to engage in surveillance of Americans, and that Congress approved such eavesdropping in 2001 when it authorized Bush to use "all necessary and appropriate force" against individuals and nations implicated in the 9/11 attacks.

The decision also gives short shrift to the administration's argument that a lawsuit against the NSA's monitoring of telephone calls and e-mail messages couldn't go forward because it would result in the divulging of state secrets. The Bush administration, the ruling notes, had "repeatedly told the general public that there is a valid basis in law for the Terrorist Surveillance Program." (It does say that the state-secrets privilege barred recovery for plaintiffs based on their claim that the NSA was also engaging in "data mining" of phone records.)

Not surprisingly, the administration said it would appeal Thursday's ruling, insisting in a statement that "the Terrorist Surveillance Program is firmly grounded in law." It said the same thing about the military commissions Bush established to try accused enemy combatants at the Guantanamo Bay naval base. The Supreme Court disagreed. The justices may take a similarly skeptical view of administration assertions when it comes to warrantless wiretapping.

Meanwhile, Congress should reclaim its institutional prerogative and enact legislation making it clear that NSA spying on Americans is governed by FISA. Legislation proposed by Sen. Dianne Feinstein (D-Calif.) would do just that, while increasing from 72 hours to seven days the period in which investigators in an emergency could conduct surveillance without a warrant. Feinstein's bill made sense before Thursday's ruling. Its enactment is even more urgent now.

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