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Wiretap hangup

U.S. eavesdropping ruled unconstitutional, not part of president's 'inherent powers,' but legal fights lie ahead

BY TOM BRUNE | Newsday Washington Bureau

August 18, 2006

WASHINGTON - A federal judge in Detroit dealt the Bush administration a major setback yesterday, ruling for the first time that the president's warrantless wiretapping program is unconstitutional and ordering an immediate end to it.

In a 43-page decision that is likely to affect this fall's congressional struggles over national security bills and the midterm elections, U.S. District Court Judge Anna Diggs Taylor ruled that the controversial program violates privacy and free speech rights, the separation of powers, and the law passed to govern domestic surveillance.

"The public interest is clear, in this matter," she wrote. "It is the upholding of our Constitution."

Surprised by the stinging rebuke, White House spokesman Tony Snow said, "We couldn't disagree more with this ruling."

Justice Department attorneys won a stay of the decision yesterday while they appeal it. Calling the five-year-old effort an important counterterrorism tool, Attorney General Alberto Gonzales said, "We will continue to utilize the program to ensure that America is safer."

Anthony Romero, director of the American Civil Liberties Union, which filed the lawsuit, hailed the ruling as "another nail in the coffin in the Bush administration's legal strategy in the war on terror."

Yet some constitutional experts questioned whether Taylor's ruling will survive the government's appeal to the 6th Circuit in Cincinnati, and possibly to the Supreme Court.

Those courts could simply reject the case by saying the plaintiffs lack standing to bring the lawsuit, since they cannot prove the government eavesdropped on them because it is a state secret, the experts said.

The ACLU lawsuit is one of many filed after The New York Times revealed in December that after the Sept. 11 attacks President George W. Bush had authorized the National Security Agency to intercept the international calls and e-mails of suspected terrorists between contacts here and abroad.

The eavesdropping in what the administration calls the "terrorist surveillance program" does not seek warrants from a court created by the Foreign Intelligence Surveillance Act that oversees domestic surveillance.

In response, Bush, Gonzales and other officials publicly defended the program and issued legal "white papers" to back up their arguments, while keeping the operational details secret.

The ACLU asked the judge to rule based on what the government admitted doing, and Taylor did, rejecting the government's argument that the case could not go forward because it would divulge state secrets.

She did dismiss the ACLU challenge to undisclosed data-mining programs, saying they fell under state secret privilege, which Pepperdine Law School professor Douglas Kmiec says actually limits the effect of the ruling, making it less than a total defeat for the administration.

But her ruling on the merits of the surveillance was extremely broad, said University of Chicago law professor Cass Sunstein, going far beyond the question of whether Bush violated the FISA law, and rejected a key Bush argument - that the Constitution gives him inherent powers in wartime.

"There are no hereditary kings in America and no powers not created by the Constitution. So all 'inherent powers' must derive from that Constitution," she wrote.

"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."

The decision will complicate a bill pushed by Sen. Arlen Specter (R-Pa.) to permit the surveillance program and in return the White House submitting it to the FISA court for review. Gonzales said that deal is still on.

The ruling also touched off partisan political sniping. Sen. Harry Reid (D-Nev.), the Senate Democratic leader, charged, "The administration's decision to ignore the Constitution and the Congress has come at the expense of the security of the American people."

Republican National Committee Chairman Ken Mehlman responded in a statement attacking Democrats and the 73-year-old judge, who was appointed by President Jimmy Carter: "Liberal judge backs Dem agenda to weaken national security.""There are no ... kings in America and no powers not created by the Constitution."

- U.S. District Court Judge Anna Diggs Taylor

"We will continue to utilize the program to ensure that America is safer."

- Attorney General

Alberto Gonzales