Warrantless Eavesdropping Ruled Unconstitutional A federal judge deals a blow to the Bush administration's warrantless wiretapping program, ruling Thursday that the National Security Agency's domestic eavesdropping is unconstitutional. The lawsuit against the program was filed on behalf of a group of journalists, attorneys and scholars by the American Civil Liberties Union (ACLU).
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Warrantless Eavesdropping Ruled Unconstitutional

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Warrantless Eavesdropping Ruled Unconstitutional

Warrantless Eavesdropping Ruled Unconstitutional

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ALEX CHADWICK, host:

This is DAY TO DAY.

I'm Alex Chadwick.

MADELEINE BRAND, host:

And I'm Madeleine Brand.

In a few minutes cherry pie and legends of the fall, all on a hundred bucks of gas.

CHADWICK: First, a federal judge has ruled that the Bush administration violated the Constitution with its warrantless wiretapping program. This is in a law suite filed by the American Civil Liberties Union, on behalf of a group of journalist and scholars and lawyers.

We have NPR's Nina Totenberg with us now on this case.

Nina, what was the government's arguments in defense of those wiretaps? These are things that the New York Times reported on back in December.

NINA TOTENBERG reporting:

That's right. The government claimed first that this case should be dismissed from court, because the Bush administration would be required to divulge in court state secrets in order to defend the program.

But the judge refused to dismiss the case, saying that the president and others in this administration had already admitted publicly the basic facts of the case, that for five years the administration has been conducting electronic surveillance of anyone who makes calls overseas to a person believed to be an al-Qaida operative or a group affiliated with al-Qaida or one of its connected groups, or anyone associated with such a group or person.

The judge, however, did dismiss a second claim to the NSA Data Mining Program because the judge said that the defense of that program would require that secret information be divulged in court.

CHADWICK: So what about the merits of this case, the basic challenge to the program?

TOTENBERG: The judge ruled that Congress, in enacting the Foreign Intelligence Surveillance Act, set up a system geared to protecting citizens' Fourth Amendment rights while at the same time allowing the government to collect intelligence, and the judge found that the president in circumventing that law violated not only the law, but these citizens Constitutional rights.

CHADWICK: So - now this case is now brought by the ACLU, which is saying what on behalf of lawyers and journalists and scholars, as we mentioned?

TOTENBERG: Well, it's actually brought technically by the lawyers and journalists and scholars who are the plaintiffs in this case. The ACLU is their attorney, as it happens, and these folks, these lawyers, journalists and scholars, all of whom work - do work that require someone to make frequent calls to the Middle East to deal with clients sources, etcetera, and they contend that there work is made more difficult, sometimes impossible, that they have to spend money to travel instead of call, that people that they talk to are afraid to talk to them, that their privacy has been invaded without any independent review by an independent judiciary as required by the Constitution. And the judge in this case agreed, noting when congress enacted the Foreign Intelligence Surveillance Act, it decreed this law was the sole vehicle for dealing with the subject. Congress provided for intelligence warrants, it allowed surveillance to begin and continue before a warrant is actually obtained, allowing, for example, unwarranted surveillance for fifteen days after a declaration of war.

The judge went on to say that the President does not have inherent power, as Mr. Bush had claimed, that the President does not have inherent power under the Constitution to override laws that he thinks are unwise, or that he doesn't like or to make new laws, which is what the judge said that the president did here, that the president in effect defied Congress, took powers to himself that he doesn't have, and violated the various rights of the individuals in this case.

CHADWICK: Do you know the judge in this case, Nina? Who is this?

TOTENBERG: The judge is Anna Diggs Taylor, who was the first black judge of the federal bench in Detroit. She was appointed by President Carter. She is 74 years old. She graduated from Barnard and Yale Law School in the '50s and couldn't get a job at the time, finally got one in the Labor Department. She later became a prosecutor.

She was for many years married to and worked in the office of the late congressman Charles Diggs, from whom she was divorced in 1971. Then she went to work for a private law firm as a partner for five years. She was appointed to the bench eight years after her divorce.

CHADWICK: Well, so what now is going to happen with this case, Nina?

TOTENBERG: Well, in all probability I can't imagine that the government will not seek a stay, meaning to block her order, which enjoined - her order enjoined the government, barred the government from continuing it's NSA spying program. And so the government will now undoubtedly go to the next level of the court, which is the 6th Circuit Court of Appeals, and ask for a stay while it appeals and it will with all probability get a stay while it appeals and it will start up the ladder of the appellate process.

CHADWICK: NPR legal correspondent Nina Totenberg with us from Washington. Thank you, Nina.

TOTENBERG: Thank you.

CHADWICK: And more coming up on DAY TO DAY from NPR News.

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