Friday, August 18, 2006

NSA wiretaps ruled illegal

In a case that has been one of the most controversial cases, challenging President Bush's authority, civil rights activists are celebrating a major milestone victory after a Michigan federal judge struck secret wiretappings authorized by an executive order as unconstitutional.

NSA wiretaps ruled illegal

Judge orders program halted; U.S. to appeal

By Gail Gibson, Tribune Newspapers.

Baltimore Sun; Sun staff writers Julie Davis and Siobhan Gorman and Tribune news services contributed to this reportPublished August 18, 2006

A federal judge in Detroit on Thursday struck down the National Security Agency's domestic surveillance program, calling it unconstitutional and an illegal abuse of presidential power. The ruling marked the first court rejection of the controversial monitoring program and amounted to a rebuke of the Bush administration's tactics in the war on terrorism.

"In this case, the president has acted, undisputedly, as [federal intelligence law] forbids," U.S. District Judge Anna Diggs Taylor said in a 43-page decision that sided with the American Civil Liberties Union challenge to the government system of warrantless eavesdropping. "Plaintiffs have prevailed, and the public interest is clear in this matter. It is the upholding of our Constitution."

Taylor ordered an immediate halt to the NSA's surveillance program, but the order was put on hold after Justice Department attorneys swiftly filed a notice of appeal with the 6th U.S. Circuit Court of Appeals.

In Washington, the ruling quickly became election-year fodder. Republicans said they hoped an appeals court will overturn the decision--with which "we couldn't disagree more," said White House Press Secretary Tony Snow--while Democrats praised it.

"The administration is wrongly convinced that it can run the country without Congress or oversight," said Sen. John Rockefeller of West Virginia, the top Democrat on the Senate Intelligence Committee.

Atty. Gen. Alberto Gonzales defended the surveillance program as "very important for the security of the country," adding: "We have confidence in the lawfulness of this program."

The ruling was a major legal setback for the Bush administration. Some legal scholars and analysts said the decision could be vulnerable on appeals, but it was cheered Thursday by the attorneys, journalists and non-profit organizations that claimed the possibility of government eavesdropping had complicated their efforts to communicate with some sources and clients overseas.

Anthony Romero, the ACLU's executive director, called the ruling "another nail in the coffin of the Bush administration's legal strategy in the war on terror."

"It is a flat rejection of secret government," Romero said. "It is a flat rejection of an all-powerful president running roughshod over the judiciary and over the legislative branches. And it is a reaffirmation of a system of checks and balances."

In her decision, Taylor said the NSA program violated the Foreign Intelligence Surveillance Act, a 1978 law that prohibited intelligence monitoring of people inside the United States without a warrant. The judge, appointed to the federal court in Detroit by President Jimmy Carter in 1979, also said the program violated 1st and 4th Amendment protections of free speech and privacy, and she criticized the program as an overly broad reach of executive power."

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," Taylor wrote in the decision. "The three separate branches of government were developed as a check and balance for one another."

Justice Department attorneys had argued at a hearing in Detroit last month that the lawsuit should be thrown out because the litigation could expose sensitive state secrets if it went forward. In Thursday's ruling, the judge said the state secrets privilege did not apply in this case. She said she could rule on the program's legality based on statements and information released by the White House in recent months as it has defended the once-secret program made public by New York Times reports late last year.

"The Bush administration has repeatedly told the general public that there is a valid basis in law for the [surveillance program]," Taylor wrote. "

This court finds defendants' arguments that they cannot defend this case without the use of classified information to be disingenuous and without merit."Legal analysts said the ruling marked a shift in the willingness of the nation's courts to challenge the president's broad claims of executive power since the Sept. 11 terrorist attacks.

"In the first few years after 9/11, what we saw was extreme deference to the government and an unwillingness in the courts to question the government's claims, and I think this shows the courts are not willing to be closed out," said Meredith Fuchs, general counsel for the National Security Archive at George Washington University. "In that sense, I think it is a turning point."

However, Robert Levy, a legal analyst at the libertarian Cato Institute, said Taylor's findings are at risk of being overturned. He noted that the claims involving 1st and 4th Amendment violations require a court to balance those protections against national security interests, an impossible task without more information about the surveillance program's scope, effectiveness and operational details."

In order to find out about those facts, you run up against the state secrets prohibition," Levy said.For the day, though, Taylor's ruling was political grist for Democrats and Republicans.

Sen. Joe Biden (D-Del.) said the decision "confirms the doubts I have had about the program's constitutionality ever since I first learned about it." He urged the White House to work with Congress to make changes to the program."

No one is against wiretapping suspected terrorists," Biden said. "The question is how to bring this program within the law." Republican leaders, meanwhile, urged the White House to fight for the program in court.

"Terrorists are the real threat to our constitutional and democratic freedoms, not the law-enforcement and intelligence tools used to keep America safe," Senate Majority Leader Bill Frist (R-Tenn.) said in a statement. "We need to strengthen, not weaken, our ability to foil terrorist plots before they can do us harm."

Copyright © 2006, Chicago Tribune


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