Judge Orders Halt to Warrantless Surveillance, finds NSA program unconstitutional.
By SARAH KARUSH
Associated Press Writer
DETROIT (Aug. 18) - Noting "there are no hereditary Kings in America and no powers not created by the Constitution," a federal judge ruled Thursday that President Bush had exceeded his authority when he allowed the National Security Agency to eavesdrop on Americans without a warrant.
U.S. District Judge Anna Diggs Taylor in Detroit said the surveillance by the NSA violates the rights to free speech and privacy, as well as the separation of powers enshrined in the Constitution.
The Bush administration said the program is a vital tool in the fight against terrorism and said it would seek a reversal by the 6th U.S. Circuit Court of Appeals in Cincinnati.
White House press secretary Tony Snow said the Bush administration "couldn't disagree more with this ruling." He said the program carefully targets communications of suspected terrorists and "has helped stop terrorist attacks and saved American lives."
Taylor ordered an immediate halt to the program, but the government said it would ask for a stay of that order pending appeal. The American Civil Liberties Union, which brought the suit, said it would oppose a stay but agreed to delay enforcement of the injunction until Taylor hears arguments Sept. 7.
The ACLU filed the lawsuit in January on behalf of journalists, scholars and lawyers who say the program has made it difficult for them to do their jobs. They believe many of their overseas contacts are likely targets of the program, which monitors phone calls and e-mails between people in the U.S. and people in other countries when a link to terrorism is suspected.
The ACLU says the 1978 Foreign Intelligence Surveillance Act, which set up a secret court to grant warrants for such surveillance, gave the government enough tools to monitor suspected terrorists.
The government argued that the program is well within the president's authority but said proving that would require revealing state secrets.
The ACLU said the state-secrets argument was irrelevant because the Bush administration already had publicly revealed enough information about the program for Taylor to rule.
Taylor agreed, writing in her 43-page opinion that "Plaintiffs need no additional facts" to establish their claims.
Taylor, a Carter appointee, said the government appeared to argue that the president has the "inherent power" to violate laws of Congress and the First and Fourth amendments to the Constitution.
"We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution," Taylor wrote. "There are no hereditary Kings in America and no powers not created by the Constitution. So all 'inherent powers' must derive from that Constitution."
The Justice Department said the program "is lawful and protects civil liberties."
ACLU executive director Anthony Romero called Taylor's opinion "another nail in the coffin in the Bush administration's legal strategy in the war on terror."
"At its core, today's ruling addresses the abuse of presidential power and reaffirms the system of checks and balances that's necessary to our democracy," he told reporters.
One of the plaintiffs in the case, Detroit immigration lawyer Noel Saleh, said the NSA program had made it difficult to represent his clients, some of whom the government accuses of terrorist connections.
Many of those cases require him to speak to witnesses overseas. "There's no way I or my clients would feel secure" about the privacy of those phone conversations, Saleh said.
Saleh, a leader in Michigan's large Arab-American community, said the program affected not only lawyers, scholars and journalists whose professional activities require them to communicate overseas, but anyone with relatives abroad.
For example, Saleh said there were "constant phone calls between the United States and Lebanon" in recent weeks, as people here sought news of their families amid the violence in the Middle East. The NSA was likely listening in on many of those calls, he said.
"People have the right to be concerned about their family, to check on the welfare of their family and not be spied on by the government," he said.
In Washington, Republicans expressed hope that the decision would be overturned, while many Democrats praised the ruling.
"It is disappointing that a judge would take it upon herself to disarm America during a time of war," Rep. Pete Hoekstra, R-Mich., chairman of the House Intelligence Committee, said in a statement.
West Virginia Sen. Jay Rockefeller, the top Democrat on the Senate Intelligence Committee, said the decision shows the executive branch needs more external reviews.
"The administration is wrongly convinced that it can run the country without Congress or oversight. This is their tragic failure, and the courts understand it," Rockefeller said. "The nation's security is serious business - and particularly during such a dangerous time - it requires constant oversight, input and understanding from the Congress, the courts, and the American people."
Both Hoekstra and Rockefeller have been briefed extensively on the program's details.
Sen. Arlen Specter, R-Pa., the Senate Judiciary Committee chairman, is championing a compromise that would allow Bush to submit the surveillance program to the Foreign Intelligence Surveillance Court for a one-time test of its constitutionality. Civil liberties groups say such a review would be a sham.
Attorney General Alberto Gonzales said the administration believes such legislation is not necessary to make the program legal but has committed to working with Specter on it. He said it may address some of the concerns raised in the judge's ruling.
But Taylor's opinion was so sweeping that congressional approval of the program would not address her concerns, said Richard Pildes, a professor at New York University School of Law.
"The debate about this program has overwhelmingly been about whether Congress has to authorize it for it to be constitutional. But beyond holding that Congress does have to do so, this judge has suggested it would violate the Constitution even if Congress authorized it," Pildes said.
"Until Congress actually addresses these questions, I would expect most appellate courts to be extremely reluctant to address many of the questions this judge was willing to weigh in on."
Taylor dismissed one claim in the ACLU's lawsuit that dealt with data-mining of phone records. The lawsuit alleged that the NSA "uses artificial intelligence aids to search for keywords and analyze patterns in millions of communications at any given time."
Taylor said not enough had been publicly revealed about that program to support the claim and further litigation would jeopardize state secrets.
Multiple lawsuits have been filed related to data-mining against phone companies, accusing them of improperly turning over records to the NSA.
Associated Press writer Katherine Shrader in Washington contributed to this report.
