Bush's Wiretaps Ruled Unconstitutional

A federal judge in Detroit says the Bush administration's domestic wiretap program violates both federal law and the Constitution and orders the warrantless suveillance program shut down. The ruling is the first definitive response to a barrage of legal suits. The Justice Department will appeal. In the meantime, both sides in the suit agree to a hold on the order to shut down the program.

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A federal judge in Detroit has handed the Bush administration its first legal defeat in the controversy over warrantless surveillance by the National Security Agency. Today, Judge Anna Diggs Taylor ruled that the Terrorist Surveillance Program violates both federal law and the constitution. She ordered the program shut down. The ruling is the first definitive response to a barrage of legal suits against the surveillance effort, which was revealed in press accounts last December.

NPR's Larry Abramson reports.

LARRY ABRAMSON reporting:

The Detroit ruling is pretty close to a slam-dunk victory for the American Civil Liberties Union. ACLU Executive Director Anthony Romero said it vindicated his view that the NSA program is an extreme extension of executive power.

Mr. ANTHONY ROMERO (Executive Director, ACLU): At a time when the Bush administration has tried to argue for even broader law enforcement powers and this idea of a unilateral president, where you have these inherent powers accrue to him because of the war on terror, it's a very strong rejection of that argument.

ABRAMSON: The ACLU brought the suit on behalf of defendants like Barnett Rubin, who was studying life in Afghanistan at the Center for International Cooperation at New York University. Rubin claimed his research made him a likely target of eavesdropping.

Mr. BARNETT RUBIN (New York University): I need to maintain contact with those people in order to continue my evaluations and analysis of the situation there. And if this ruling is implemented, it will give me greater confidence that I can continue to do so.

ABRAMSON: Judge Taylor agreed that Rubin and other plaintiffs had standing to sue, even though they could not prove that their conversations had been monitored. And she rejected the government's argument that the case could not proceed because it would reveal state secrets, saying that claim was disingenuous.

She said she had reviewed classified documents filed to justify the Terrorist Surveillance Program and found they were not necessary to the case. The ACLU's Anthony Romero.

Mr. ROMERO: She rejects questions that - or arguments by the Bush administration that this is not subject to judicial review. Through every step of the opinion argues what have been some of the major statements and arguments of the Bush administration and flatly contradicts them.

ABRAMSON: The opinion goes well beyond the particulars of this suit. Judge Taylor dissects the administration's claim that the president is not bound by the Foreign Intelligence Surveillance Act, which requires warrants for intelligence wiretaps. She found that law contains numerous concessions to executive power, such as allowing emergency wiretaps. The judge said that by refusing to take advantage of those provisions, the president violated the Fourth Amendment's protections against unreasonable searches as well as the First Amendment rights of the plaintiffs.

Mr. ROMERO: It's an absolute rejection. There's no question about that.

ABRAMSON: Attorney Ken Bass was in the Justice Department when the Foreign Intelligence Surveillance Act was passed. He says this victory for the plaintiffs doesn't surprise him, but it may have a short life. He says there's no controlling Supreme Court decision on this issue. Until the question reaches the High Court, Bass says judges will probably disagree because these questions have not been answered.

Mr. KEN BASS (Former Justice Department official): What is the predicate? Who is being targeted? What are the facts that support the targeting? What's done with the results? Because the ultimate issue is the reasonableness of the program.

ABRAMSON: The judge said the information she was allowed to see did not persuade her but Ken Bass doubts the administration revealed these operational details, which have been guarded closely.

Mr. BASS: The Justice Department, after all, has refused - or the president has refused - to allow Justice Department lawyers to get to the specifics of the surveillance program.

ABRAMSON: The Justice Department announced it would appeal. In the meantime, both sides have agreed to a hold on the judge's order to shut down the Terrorist Surveillance Program.

In a statement, the administration said the TSP is "a critical tool that ensures we have in place an early-warning system to detect and prevent a terrorist attack."

Larry Abramson, NPR News, Washington.

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