NSA spying ruled illegal

Federal judge strikes down warrantless domestic eavesdropping

August 18, 2006|By GAIL GIBSON | GAIL GIBSON,SUN REPORTER

A federal judge in Detroit struck down the National Security Agency's domestic surveillance program yesterday, 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 broad 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 Terrorist Surveillance Program. But that order was put on hold after attorneys with the U.S. Department of Justice swiftly filed a notice of appeal with the 6th U.S. Circuit Court of Appeals. The White House spokesman said in a statement that "we couldn't disagree more with this ruling," and U.S. Attorney General Alberto R. Gonzales defended the program at an afternoon news conference.

"It has been very important for the security of the country," Gonzales said. "We have confidence in the lawfulness of this program."

The ruling was a major legal setback for the Bush administration, already scrambling after the U.S. Supreme Court in June rejected its plan for military tribunals to try terror suspects held at Guantanamo Bay, Cuba. Some legal scholars and analysts said the decision could be vulnerable on appeals, but it was cheered yesterday by the attorneys, journalists and nonprofit organizations that claimed that the possibility of government eavesdropping had complicated their efforts to communicate with some sources and clients overseas.

Anthony D. 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 prohibits intelligence monitoring of individuals 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 First and Fourth Amendment protections of free speech and privacy, and she repeatedly 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 yesterday'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 public statements and information released by the White House in recent months as it has defended the once-secret program that was made public by reports late last year in The New York Times.

"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 distinct shift in the willingness of the nation's courts to challenge the president's broad claims of executive power since the Sept. 11 terror attacks. Earlier this summer, a federal judge in California ruled that a lawsuit against AT&T over its alleged involvement in the NSA program could go forward, also rejecting an attempt by the government to invoke the state secrets privilege.

"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."

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