Thursday, August 17, 2006
BREAKING NEWS ~ Federal judge rules domestic spying program unconstitutional
Jeannie Shawl at 12:14 PM ET
[JURIST] AP is reporting that US District Judge Anna Diggs Taylor has ruled that the Bush administration's domestic surveillance program [JURIST news archive; US DOJ Q/A, PDF] is unconstitutional and has ordered the National Security Agency [official website] to immediately cease using warrantless wiretaps to intercept communications of suspected terrorists when one party to the communication is outside the US. Taylor ruled that the NSA wiretaps violate free speech and privacy rights.
12:21 PM ET - Read the opinion [PDF] and judgment and permanent injunction order [PDF].
12:29 PM ET - Taylor's ruling comes in a lawsuit [complaint, PDF; ACLU materials] filed by the ACLU on behalf of journalists, scholars, attorneys and national nonprofit organizations having "a well-founded belief that their communications are being intercepted by the NSA." The US Justice Department argued that the case should be dismissed [JURIST report] because defending it in court would jeopardize national security. In June Taylor denied a government motion [JURIST report] to stay consideration of an ACLU motion for partial summary judgment on state secrecy grounds.
In her opinion Thursday, Taylor wrote: Defendants assert that they cannot defend this case without the exposure of state secrets. This court disagrees. The Bush Administration has repeatedly told the general public that there is a valid basis in law for the TSP [Terrorist Surveillance Program]. Further, Defendants have contended that the President has the authority under the AUMF and the Constitution to authorize the continued use of the TSP. Defendants have supported these arguments without revealing or relying on any classified information. Indeed, the court has reviewed the classified information and is of the opinion that this information is not necessary to any viable defense to the TSP. Defendants have presented support for the argument that "it . . is well-established that the President may exercise his statutory and constitutional authority to gather intelligence information about foreign enemies." Defendants cite to various sources to support this position. Consequently, the court finds Defendants' argument that they cannot defend this case without the use of classified information to be disingenuous and without merit. Taylor went on to hold that the domestic spying program violates the First and Fourth Amendments of the US Constitution, separation of powers principles, the Administrative Procedures Act and statutory law. AP has more.
4:29 PM ET - The White House said Thursday that the administration will appeal Taylor's ruling. According to a statement from the White House Press Secretary: We couldn't disagree more with this ruling, and the Justice Department will seek an immediate stay of the opinion and appeal. Until the Court has the opportunity to rule on a stay of the Court's ruling in a hearing now set for September 7, 2006, the parties have agreed that enforcement of the ruling will be stayed.
United States intelligence officials have confirmed that the program has helped stop terrorist attacks and saved American lives. The program is carefully administered, and only targets international phone calls coming into or out of the United States where one of the parties on the call is a suspected Al Qaeda or affiliated terrorist. The whole point is to detect and prevent terrorist attacks before they can be carried out. That's what the American people expect from their government, and it is the President's most solemn duty to ensure their protection.
The Terrorist Surveillance Program is firmly grounded in law and regularly reviewed to make sure steps are taken to protect civil liberties. The Terrorist Surveillance Program has proven to be one of our most critical and effective tools in the war against terrorism, and we look forward to demonstrating on appeal the validity of this vital program. Read the full statement.
4:59 PM ET - In a separate statement [text], the US Justice Department called the program "an essential tool for the intelligence community in the War on Terror" and said that the DOJ believes that "the program is lawful and protects civil liberties." The DOJ also reiterated that it has appealed the decision and that the parties have agreed to a delay in implementing the injunction until the district court can hear the DOJ's motion for a stay pending appeal.
6:40 PM ET - US Attorney General Alberto Gonzales also defended the domestic surveillance program Thursday, saying: It is a very narrow program, again, focused on communications with al Qaeda where one end of the phone call -- communication is foreign, outside of the United States.
It has been very effective. We've had numerous statements by leaders of the intelligence community about the effectiveness of this program in protecting America.
We also believe very strongly that the program is lawful. It has been reviewed by a number of lawyers within the administration, including lawyers out at the NSA, including lawyers at the Department of Justice.
It is a program that is reviewed periodically for its continued effectiveness. It is reviewed periodically to ensure that it remains lawful.
It has been very important for the security of our country. Read the transcript of Gonzales' press conference.
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A United States District federal judge ruled Thursday that the Bush administration's wiretapping program is "unconstitutional" and that it "must be halted immediately." The ruling came in a lawsuit filed by the American Civil Liberties Union(ACLU) challenging federal intelligence agencies'  eavesdropping of international phone calls without obtaining court warrants.

The defendants, the National Security Agency (NSA), the Central Security Service and NSA Director and Chief of the Central Security Service, Lieutenant General Keith B. Alexander asserted that they cannot defend their case without exposing state secrets.

Judge Anna Diggs Taylor, US District Judge for the Eastern District of Michigan, wrote in an opinion that the  defense argument was "without merit". 
 
"Defendants have supported these arguments without revealing or relying on any classified information," Taylor wrote in an opinion accompanying the ruling. 

Judge Taylor also ruled  that the tapping violates "the separation of powers enshrined in the Constitution, privacy and free speech."

The Bush Administration has been firmly committed to the wiretapping, known as the Terrorist Surveillance Program  (TSP), and said the practice has a valid basis in law, despite public criticism. Defenders of the program contended that the President has the authority under the AUMF and the Constitution to authorize the continued use of the TSP.

Judge Taylor wrote in her 43-page opinion that, "We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. 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 ACLU filed the lawsuit to protect the privacy and unreasonable search of lawful verbal exchanges by journalists, lawyers and scholars among others. The court order ruled that powers granted by TSP violated the U.S. Separation of Powers doctrine, the Administrative Procedure Act, and the First and Fourth Amendments. 

An appeal over the court decision is expected.  

In 2001, President George W. Bush approved a program that allowed the NSA to monitor international calls for possible terrorist activity when one party to the call was outside U.S. territory. The government argued that the program is well within the president's authority. The Justice Department wrote, "In the ongoing conflict with al Qaeda and its allies, the president has the primary duty under the Constitution to protect the American people".