Federal Judge Orders End to Warrantless Wiretapping.

A federal judge in Detroit ruled today that the Bush administration’s eavesdropping program is illegal and unconstitutional, and she ordered that it cease at once.

District Judge Anna Diggs Taylor found that President Bush exceeded his proper authority and that the eavesdropping without warrants violated the First and Fourth Amendment protections of free speech and privacy.

“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,” she wrote, in a decision that the White House and Justice Department said they would fight to overturn. A hearing will be held before Judge Taylor on Sept. 7, and her decision will not be enforced in the meantime pending the government’s appeal.

The judge’s ruling is the latest chapter in the continuing debate over the proper balance between national security and personal liberty since the attacks of Sept. 11, 2001, which inspired the eavesdropping program and other surveillance measures that the administration says are necessary and constitutional and its critics say are intrusive.

In becoming the first federal judge to declare the eavesdropping program unconstitutional, Judge Taylor rejected the administration’s assertion that to defend itself against a lawsuit would force it to divulge information that should be kept secret in the name of national security.

“Predictably, the war on terror of this administration has produced a vast number of cases, in which the states secrets privilege has been invoked,” Judge Taylor wrote. She noted that the Supreme Court has held that because the president’s power to withhold secrets is so powerful, “it is not to be lightly invoked.” She also cited a finding in an earlier case by the Court of Appeals for the District of Columbia Circuit that “whenever possible, sensitive information must be disentangled from nonsensitive information to allow for the release of the latter.”

In any event, she said, she is convinced that the administration could defend itself in this case without disclosing state secrets. Judge Taylor’s ruling came in a suit filed by the American Civil Liberties Union on behalf of journalists, scholars, lawyers and various nonprofit organizations who argued that the possibility of eavesdropping by the National Security Agency interfered with their work.

Although she ordered an immediate halt to the eavesdropping program, no one who has followed the controversy expects the litigation to end quickly. The White House issued a statement saying “we couldn’t disagree more” with Judge Taylor’s decision and crediting the surveillance program with saving American lives.

The Justice Department called the surveillance program “a critical tool” against Al Qaeda and said the parties to the suit have agreed to a stay of Judge Taylor’s order until the Sept. 7 hearing. On that day, the judge will be asked to prolong the stay of her order pending further appeals, to the Court of Appeals for the Sixth Circuit or perhaps to the Supreme Court.

Some Republicans voiced disappointment over the ruling, while Democrats praised it. The starkly different reactions signaled more heated debate on Capitol Hill when Congress reconvenes.

But for the moment, the ruling by Judge Taylor caused elation among the plaintiffs.

“It’s another nail in the coffin of executive unilateralism,” said Jameel Jaffer, a lawyer for the plaintiffs with the A.C.L.U. And Anthony Romero, executive director of the A.C.L.U., said Judge Taylor’s ruling “confirms that the government has been acting illegally, in contravention of the Foreign Intelligence Surveillance Act and the Fourth Amendment.’’

The surveillance act was passed by Congress in 1978 in response to disclosures of previous government improprieties in eavesdropping. The act established a secret court to handle applications for surveillance operations, and set up procedures for them to take place while applications for warrants are pending in some limited circumstances and for limited times.

Judge Taylor said “the president has acted, undisputedly, as F.I.S.A. forbids,” thus defying the express will of Congress, and she was unpersuaded by the government’s stance that it could not defend itself in the lawsuit without doing the country harm.

“Consequently, the court finds defendants’ arguments that they cannot defend this case without the use of classified information to be disingenuous and without merit,” she wrote.

The judge, who heard arguments in the case in June, brushed aside several assertions made by lawyers for the National Security Agency. She held that, contrary to the N.S.A.’s assertions, the plaintiffs were suffering real harm, and had standing to sue the government.

“Here, plaintiffs are not asserting speculative allegations,” she said.

Judge Taylor, appointed by President Jimmy Carter in 1979, did not deal a total defeat to the administration. She dismissed a separate claim by the A.C.L.U. over data-mining of telephone records, agreeing that further litigation could indeed jeopardize state secrets.

But over all, Judge Taylor’s decision was a rebuke to the administration, as she made clear in closing by quoting Chief Justice Earl Warren’s words in a 1967 ruling: “Implicit in the term ‘national defense’ is the notion of defending those values and ideas which set this nation apart.”

Democrats said Judge Taylor saw things the right way. “Today’s district court ruling is a strong rebuke of this administration’s illegal wiretapping program,” said Senator Russell D. Feingold of Wisconsin. “The president must return to the Constitution and follow the statutes passed by Congress. We all want our government to monitor suspected terrorists, but there is no reason for it to break the law to do so.”

Representative Ed Markey of Massachusetts, a senior Democrat on the House Homeland Security Committee, said the administration should stop “poking holes in the Constitution” and concentrate on “plugging holes in homeland security.”

But Republicans lined up behind the administration. "America cannot stop terrorists while wearing blinders,” said House Speaker J. Dennis Hastert. “We stop terrorists by watching them, following them, listening in on their plans, and then arresting them before they can strike. Our terrorist surveillance programs are critical to fighting the war on terror and saved the day by foiling the London terror plot.”

Senator Bill Frist of Tennessee, the majority leader, agreed. “We need to strengthen, not weaken, our ability to foil terrorist plots before they can do us harm,” he said. “I encourage swift appeal by the government and quick reversal of this unfortunate decision."

[Source: By David Stout, The New York Times, NY, 17Aug06]

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