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Wiretap Project Ruled Illegal

Times Staff Writer

A federal judge in Detroit ruled Thursday that the government’s warrantless domestic wiretapping program is unconstitutional and must be halted.

U.S. District Judge Anna Diggs Taylor held that the wiretapping program violates the 1st and 4th Amendments to the Constitution, which respectively protect free speech and prohibit unlawful searches. She also held that the program, formally known as the Terrorist Surveillance Program and run by the National Security Agency, violates the federal Administrative Procedures Act and the separation-of-powers doctrine.

It is the first time a federal judge has ruled that the controversial surveillance program violates constitutional rights. Similar challenges to the program are pending in New York, Oregon and Texas.

The Bush administration announced that it would appeal and asked that the decision be stayed. Taylor is expected to hold a hearing on that request Sept. 7. The plaintiffs have agreed to a temporary stay until then.

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Congress is considering legislation on the wiretapping issue. Democrats hailed the ruling and Republicans criticized it.

Taylor, an appointee of President Carter, specifically rejected the contention that the president had inherent authority to create such a wiretapping program. “There are no hereditary kings in America and no powers not created by the Constitution,” she said in her 44-page decision.

Taylor said that if the program were allowed to continue, it would irreparably harm the rights of the plaintiffs, which included the American Civil Liberties Union, the Council on American-Islamic Relations, Greenpeace, and individuals, including scholars and attorneys. “The public interest is clear in this matter. It is the upholding of our Constitution,” Taylor wrote.

U.S. Atty. Gen. Alberto R. Gonzales responded Thursday, “We respectfully disagree with the decision of the judge.” He said he was confident that the wiretapping program was legal and added, “We will continue to utilize the program to ensure that America is safer.” The challenge to the ruling will be heard by the U.S. 6th Circuit Court of Appeals, which is based in Cincinnati and covers Michigan, Kentucky, Ohio and Tennessee.

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Taylor did award the Bush administration one victory Thursday: She dismissed the plaintiffs’ challenge to the legality of federal mining for data in telephone and electronic communications. She agreed with the government that litigating that claim would violate its state-secrets privilege.

The bulk of her decision, though, went against the government. In response to the assertion that the warrantless wiretapping program was necessary to the defense of the nation, Taylor quoted a 1967 decision of then-Chief Justice Earl Warren: “It would indeed be ironic if, in the name of national defense, we would sanction the subversion of ... those liberties ... which makes the defense of the nation worthwhile.”

The spying program has ignited broad controversy. Some assert it violates fundamental American rights; others contend it is legal and necessary to protect national security in an age of terrorism.

“I believe very strongly that the president does have the authority to authorize this kind of conduct, particularly at a time of war,” Gonzales said at his news conference following the judge’s ruling.

After the surveillance program came to public attention in December, in an article in the New York Times, the government admitted that it had launched the initiative after the Sept. 11 terrorist attacks. NSA personnel listen in on phone calls and obtain e-mails into and out of the U.S. involving those it suspects of being affiliated with terrorists. The program bypasses the Foreign Intelligence Surveillance Court, created in 1978 after revelations of government spying abuses. In the last 28 years, that court has approved thousands of wiretapping requests and rejected very few.

The government has attempted to have the suit in Detroit and the other challenges thrown out on two grounds. First, Justice Department lawyers maintain that the plaintiffs have not demonstrated that they have been injured by the program. Second, the government argues that even if the plaintiffs could show they are entitled to sue, the case should be barred because of the state-secrets privilege.

That privilege, laid out in a U.S. Supreme Court decision in 1953, prohibits disclosure of information in legal proceedings when there is a “reasonable danger” that the evidence would “expose military matters which, in the interest of national security, should not be divulged.”

Judge Taylor ruled for the plaintiffs on both issues.

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The judge said that if she were to accept the government’s contention that the plaintiffs did not have standing to sue, a host of illegal acts by the government “would be immunized from judicial scrutiny. 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.”

And she said the plaintiffs had shown that they had suffered “a real and concrete harm” as a result of the surveillance program.

Taylor flatly rejected the government lawyers’ contention that they could not defend the case without exposing state secrets. She noted that government officials had publicly confirmed a number of elements of the surveillance program, and that in court their lawyers supported their arguments for the legality of the program without revealing any secrets.

Consequently, she said, she found the government’s position that it could not defend the case without classified information “disingenuous and without merit.”

Taylor pointed out that U.S. District Judge Vaughn Walker in San Francisco had also cited the government’s admission of the program’s existence, in a ruling last week.

Walker declined AT&T;'s request that he dismiss customers’ lawsuit alleging that the company had collaborated with the NSA on a warrantless surveillance program. Like Taylor, Walker concluded that challenges to federal data-mining -- about which the government has revealed little -- had to be dismissed because litigation could expose state secrets.

The ACLU had asserted in the Detroit suit that NSA data-mining “uses artificial intelligence aids to search for keywords and analyze patterns in millions of communications at any given time.” Numerous similar legal challenges around the country contend that phone companies have illegally turned over records to the NSA.

Despite the setback on that issue, ACLU Executive Director Anthony D. Romero described Taylor’s overall ruling against the warrantless wiretapping as “a landmark victory against the abuse of power that has become the hallmark of the Bush administration.”

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Dawud Walid, executive director of the Michigan chapter of the Council on American-Islamic Relations, another of the plaintiffs, said: “This is an affirmation that we have a government that is bound by laws, and this country is not ruled by a monarchy but by a democratic system of checks and balances.”

In a statement supporting the ruling, Rep. Jane Harman of Venice, the ranking Democrat on the House Intelligence Committee, said the “terrorists who are plotting against us would like nothing more than to see us erode our Constitution. We cannot hand them the victory they seek.”

The ruling “upholds the basic principle that even the president is not outside the law and that he has exceeded his constitutional authority,” said Rep. Adam B. Schiff (D-Burbank). He said he hoped the ruling would give impetus to a bill he had introduced calling for greater congressional oversight of the NSA.

Senate Majority Leader Bill Frist (R-Tenn.) called the decision “unfortunate.” He said, “Terrorists are the real threat to our constitutional and democratic freedoms, not the law enforcement and intelligence tools used to keep America safe.”

The Republican National Committee issued a more strident statement, headlined “Liberal Judge Backs Dem Agenda to Weaken National Security.”

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Times staff writers Richard B. Schmitt and Richard Simon In Washington contributed to this article.


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