Federal judge orders halt to NSA spy program

Authorized yet warrantless surveillance is ruled unconstitutional, but gets a stay of execution.

Anne Broache Staff Writer, CNET News.com
Anne Broache
covers Capitol Hill goings-on and technology policy from Washington, D.C.
Anne Broache
5 min read
The warrantless Internet and telephone surveillance program authorized by the Bush administration violates the U.S. Constitution and must cease immediately, a federal judge ruled Thursday.

The landmark decision makes U.S. District Judge Anna Diggs Taylor in Detroit the first judge to strike down the National Security Agency's once-secret program. The American Civil Liberties Union had filed suit against the government, claiming the program "ran roughshod" over the constitutional rights of millions of Americans and ran afoul of federal wiretapping law.

In a sweeping victory for the ACLU and its clients, which included organizations representing criminal defense lawyers, journalists, Islamic-Americans and academics, Taylor appeared to knock down several major legal arguments that the Bush administration has used to defend the program since it was revealed by The New York Times last December.

"Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution," the judge wrote in her 43-page opinion (click here for PDF).

The decision immediately drew an appeal from the U.S. Department of Justice, which argued in a statement that "the Terrorist Surveillance Program is an essential tool for the intelligence community in the War on Terror." The Bush administration also requested that the judge's opinion be put on hold until the appeals process is complete. The government appealed the decision to the U.S. Court of Appeals for the Sixth Circuit.

Meanwhile, the parties agreed to a temporary stay of the opinion, which allows the surveillance program to continue operating, until a Sept. 7 hearing to address the government's request for a lengthier stay.

The terrorist surveillance program, Taylor ruled, violates the First Amendment's right to freedom of expression and the Fourth Amendment right to privacy--that is, freedom from unreasonable searches. It also ignores requirements of a 1978 electronic wiretapping law known as the Foreign Intelligence Surveillance Act (FISA) and represents an overstepping of presidential powers, she wrote.

"There are no hereditary kings in America and no powers not created by the Constitution," the judge wrote, dismissing the Bush administration's argument that the warrantless program falls within the president's inherent wartime powers as commander in chief.

The judge, who was appointed by President Carter in 1979, also dismissed the government's request that the suit be thrown out because of the "state secrets privilege," which permits the government to suppress a lawsuit that might lead to the disclosure of military secrets.

Taylor did, however, reject a piece of the ACLU's lawsuit that related to alleged data mining of communications records, saying that litigation of that claim would violate the state secrets privilege.

"We are enormously gratified with the court's historic ruling today," ACLU Executive Director Anthony Romero said in a conference call with reporters. "At its core, today's ruling addresses the abuse of presidential power and reaffirms a system of checks and balances that's necessary in our democracy."

The Justice Department disputed the judge's conclusions, referring again to the program as a "critical tool" for detecting and preventing terrorist attacks. "The president has the primary duty under the Constitution to protect the American people," the department said in a statement. "The Constitution gives the president the full authority necessary to carry out that solemn duty, and we believe the program is lawful and protects civil liberties."

White House Press Secretary Tony Snow also blasted Taylor's decision, saying in a statement that the Bush Administration "couldn't disagree more" with the ruling. He pointed to revelations just last week of a terrorist plot to blow up transatlantic airliners, which netted at least 24 arrests overseas.

"United States intelligence officials have confirmed that the program has helped stop terrorist attacks and saved American lives," Snow said. "The program is carefully administered, and only targets international phone calls coming into or out of the United States where one of the parties on the call is a suspected Al Qaeda or affiliated terrorist."

Clients defended by ACLU in the suit praised the district court's decision, saying it would allow them to carry out their professional duties without fear of being spied upon.

"I'm extremely relieved to know that this court believes in the right of our clients, who are all people accused of crimes, to the confidentiality that has long believed to be essential to the criminal justice system," said Nancy Hollander, a New Mexico-based attorney who spoke on behalf of the National Association of Criminal Defense Lawyers.

New York University professor Barney Rubin, a plaintiff in the case who has authored several books on Afghanistan, said the ruling gave him "greater confidence" that he would be able to conduct interviews with subjects located in the nation considered a state sponsor of terror without worrying his conversations would be scooped up by the NSA.

It wasn't immediately clear what impact the ruling will have on a number of other cases challenging the legality of the NSA program. On July 20, a federal judge in San Francisco dismissed the government's assertion of the state secrets privilege and ruled that a case brought by the Electronic Frontier Foundation, a digital rights group, against AT&T could proceed--a move that the government readily appealed.

Five days later, however, a federal judge in Chicago granted the Justice Department's request to throw out another suit related to the NSA program brought by the ACLU.

A number of congressional proposals also seek to broaden wiretapping law, essentially making the existing NSA program legal. One controversial bill endorsed by the Bush administration proposes moving all cases disputing electronic surveillance programs to a secret court.

Congressional Democrats on Thursday generally applauded the decision, while Republicans decried it as a potential threat to the war on terror.

"If the courts of final review rule that these procedures don't work, we will find a way that does," U.S. House of Representatives Speaker Dennis Hastert said in a statement. "We hope that the Democrats will join us in an effort to make sure America continues these vital terrorist surveillance programs.

The Democratic co-chairman of the Senate Judiciary Committee said the judge's ruling reaffirmed his ongoing belief that the NSA program was illegal. "We can and should wiretap terrorists under the current FISA law," Sen. Patrick Leahy of Vermont said in a statement. "The problem has been the Bush-Cheney administration's insistence on doing it illegally, without checks and balances to prevent abusing the rights of Americans."

The ACLU said it was confident that the constitutional arguments raised by Taylor's opinion would prompt the politicians to rethink taking such steps. "Members of Congress have taken an oath to uphold the Constitution," said ACLU Legislative Director Caroline Fredrickson, "and they're going to have to take this decision very seriously."