Updated: A judge says the government's actions violate the First and Fourth Amendments, the NISA and other laws, and orders an immediate halt to the program.
A federal judge in Detroit has rejected the Bush administrations argument that the National Security Agencys wiretap program, which has been conducted for nearly five years, is allowed by the U.S. Constitution.
In a sharply worded statement that cites precedents from as far back as the late 18th century, and quotes extensively from the Framers of the Constitution, Judge Anna Diggs Taylor of the U.S. District Court for the Eastern District of Michigan, said: "We must 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."
The suit was brought by a range of plaintiffs under the auspices of the American Civil Liberties Union. Other plaintiffs included the Council on American Islamic Relations, Greenpeace and the National Association of Criminal Defense Lawyers.
The judge rejected the administrations claims that the defendants did not have the standing to sue the government, saying that they had each suffered in their ability to carry on communications protected by the First Amendment. She also rejected the administrations claims that the activity was protected because it was a state secret. She said that the information provided by the President of the United States in a series of public statements about the NSA surveillance program was itself sufficient for the plaintiffs to make their case.
Finally, the court rejected the administrations claims that the current law that provides for a secret court to handle warrants in espionage cases, which was set up by the Foreign Intelligence Surveillance Act, is unconstitutional. She noted that in a number of instances, the federal courts have upheld the constitutionality of such courts as a needed balance between protecting constitutional rights and the governments need for secrecy.
Privacy groups responded with outrage to reports that the NSA is collecting records of billions of phone calls made in the United States. Click here to read more.
In her findings, Judge Taylor said that the administrations actions in conducting the NSA wiretapping violate the Administrative Procedures Act, the Separation of Powers doctrine, the First and Fourth Amendments to the Constitution, and statutory law. The judge did reject a portion of the plaintiffs case relating to data mining of the information recovered by the wiretaps because it would require the revealing of state secrets.
However, in her decision, the judge granted the plaintiffs request for a permanent injunction against continuing the NSA wiretapping. She said that the governments actions caused "irreparable injury," and that the government could accomplish its ends by obeying the law and remaining in compliance with the Constitution.
"Plaintiffs have prevailed and the public interest is clear, in this matter. It is the upholding of our Constitution."
The U.S. Department of Justice has said that it will appeal Judge Taylors ruling. Because of the pending appeal, the judge agreed to a temporary stay in her order so that the government can present its case for a longer stay while the case is appealed.
Attorney General Alberto Gonzales said he thinks the court was wrong, and for that reason is going ahead with an appeal. "Obviously, of course, Im disappointed" Gonzales said in a press conference Aug. 17 in Washington. "I believe very strongly that the President does have the authority to authorize this kind of conduct," he said, noting that it was during a time of war. "And we believe the authority comes from the authorization to use military force and from his constitutional authority as commander in chief," Gonzales said.
Others dont agree with Gonzales or with the NSAs wiretapping in general. "I think that its been clear from the outset that the Presidents program was illegal," Jim Dempsey, the Policy Director for the Center for Democracy and Technology, in Washington, told eWEEK.com.
Dempsey said the real issue was how a group would be able to surmount the barriers sure to be put up. He said the decision by Judge Taylor walked carefully through the concept of the state secret privilege to show how it didnt apply in this case (claiming that the NSA wiretap program was a state secret was a core part of the administrations case).
"They didnt pass the Constitutional giggle test," said Lillie Coney, Associate Director of the Electronic Privacy Information Center, in Washington. "The actions the administration had been engaged in were not sanctioned by the Constitution." Coney called for Congress to act to define exactly how such surveillance could be structured so that it could proceed legally, and with full constitutional protections.
Dempsey said he thinks the effects of the administrations position could prove long-lasting. "In the past, the courts have always been extremely deferential to the claims of national security. This administration has in a way shot itself in the foot and harmed future presidents," Dempsey said.
Editors Note: This story was updated to include comments from Attorney General Alberto Gonzales and analysts.
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Wayne Rash is a Senior Analyst for eWEEK Labs and runs the magazine's Washington Bureau. Prior to joining eWEEK as a Senior Writer on wireless technology, he was a Senior Contributing Editor and previously a Senior Analyst in the InfoWorld Test Center. He was also a reviewer for Federal Computer Week and Information Security Magazine. Previously, he ran the reviews and events departments at CMP's InternetWeek.
He is a retired naval officer, a former principal at American Management Systems and a long-time columnist for Byte Magazine. He is a regular contributor to Plane & Pilot Magazine and The Washington Post.