Federal Court Finds NSA Wiretaps Unconstitutional

By Wayne Rash
August 18, 2006
www.eweek.com

A federal judge in Detroit has rejected the Bush administration’s argument that the National Security Agency’s 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 administration’s 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 administration’s 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 administration’s claims that the current law that provides for a secret court to handle warrants in espionage cases, which was set up by the Federal Information Security 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 government’s need for secrecy.

In her findings, Judge Taylor said that the administration’s 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 plaintiff’s 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 plaintiff’s request for a permanent injunction against continuing the NSA wiretapping. She said that the government’s 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 Taylor’s ruling.