Judge's ruling bars warrantless wiretaps
Contends program intrudes on rights
WASHINGTON -- A federal district judge yesterday ruled that President Bush's warrantless wiretapping program is illegal and ordered the National Security Agency to shut it down, issuing a sweeping rebuke of the once-secret domestic-surveillance effort the White House authorized following the terrorist attacks of Sept. 11, 2001.
The ruling is the first step in a case that is likely to end up before the Supreme Court. The Bush administration, calling the program an ``essential tool" in the war on terrorism, immediately appealed the ruling and asked the judge not to enforce the injunction. The surveillance will continue until a hearing on the request.
The administration has acknowledged that the program violates a 1978 law that requires the government to obtain warrants to wiretap Americans, but has argued that the president has the wartime authority to override the law.
In a 43-page opinion, Judge Anna Diggs Taylor of the Eastern District of Michigan rejected that argument. She said Bush violated federal statutes and constitutional protections for privacy and free speech when he authorized the military to wiretap Americans' international calls and e-mails without court oversight, overstepping the limits of his executive power.
``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," Taylor wrote, later adding, ``There are no hereditary kings in America."
White House spokesman Tony Snow attacked the ruling and defended what the administration calls the Terrorist Surveillance Program as ``one of our most critical and effective tools" in preventing terrorist attacks.
The administration has provided few details about the program, but acknowledged that Bush authorized the NSA, without seeking warrants, to intercept calls and e-mails between Americans and people overseas if either party is suspected of ties to terrorism. The military agency's ``shift supervisors," not judges, have the power to sign off on whether to approve the spying.
The Justice Department yesterday released a statement insisting that Bush has the legal power to authorize such wiretapping without obtaining warrants.
``In the ongoing conflict with Al Qaeda and its allies, the president has the primary duty under the Constitution to protect the American people," the statement said. ``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."
But Anthony Romero, executive director of the American Civil Liberties Union, which brought the lawsuit, hailed the ruling as a victory for the ``rule of law."
``Today's ruling is a landmark victory against the abuse of power that has become the hallmark of the Bush administration," Romero said. ``Government spying on innocent Americans without any kind of warrant and without congressional approval runs counter to the very foundations of our democracy."
The ACLU is representing scholars, journalists, lawyers, and organizations that frequently communicate with people in the Middle East via telephone lines or e-mail. They argued that the program's existence violated their rights to free speech and to privacy, saying that people no longer wanted to communicate with them out of fear that their calls and e-mails would be monitored.
The Bush administration asked Taylor to throw out the case, saying that the plaintiffs had no proof that they had been harmed and that allowing the case to go forward could damage national security by revealing secret details about how the program works.
But Taylor, who was nominated by President Carter in 1979, rejected the government's arguments. She said the administration's public statements contained enough information for her to rule that the program was illegal.
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The Senate Judiciary Committee held a series of hearings on the program this year. Its chairman, Arlen R. Specter, Republican of Pennsylvania, recently introduced a bill that would create an exception in the warrant statute for the program and allow a special national security court to review whether the program violates the Constitution. The bill is pending in the Judiciary Committee.
Taylor's ruling yesterday was hailed by some of the most outspoken critics of Bush's warrantless spying, including Senator Russell Feingold, a Wisconsin Democrat who proposed that the president be censured.
``We all want our government to monitor suspected terrorists, but there is no reason for it to break the law to do so," Feingold said. ``Today's federal court decision is an important step toward checking the president's power grab."
Defenders of the administration, however, blasted the decision and predicted it would not stand up to scrutiny by the US Court of Appeals for the Sixth Circuit , in Cincinnati , which oversees Michigan district courts.
``It's an appallingly bad decision by a district court judge who is very much out of the mainstream," said David Rivkin, a former associate White House counsel in the administration of President George H.W. Bush. ``It is certain to be overturned."
Some critics of the administration's legal theories expressed reservations about Taylor's opinion. Several said, for example, that she made no mention of a June Supreme Court ruling that rejected Bush's contention that his wartime powers allowed him to decide how to try Guantanamo Bay detainees. Citing the court's reasoning would have made her opinion stronger, they said.
Jack Balkin, a constitutional law professor at Yale Law School, wrote on his blog that Taylor reached the right outcome in finding the program to be illegal, but said her arguments were ``disappointing" and chided her for not focusing on the recent Supreme Court precedent.
``Because the court's opinion, quite frankly, has so many holes in it, it is . . . clear to me that the plaintiffs will have to re-litigate the entire matter before the circuit court, and possibly the Supreme Court," Balkin wrote. ``The reasons that the court below has given are just not good enough. This is just the opening shot in what promises to be a long battle."
But Laurence Tribe, a constitutional law professor at Harvard Law School, said in an e-mail that Taylor did a ``splendid job" of demonstrating that the ``administration acted in an inexcusably lawless manner."
``If her ruling is upheld on appeal, as I think it should be and probably will be, the upshot will go far toward establishing that President Bush and his advisers weren't merely skating on thin legal ice . . . they were skating underwater," Tribe said. 