Federal judge rules warrantless wiretaps illegal

August 17, 2006

A United States District federal judge ruled Thursday that the Bush administration's wiretapping program is "unconstitutional" and that it "must be halted immediately." The ruling came in a lawsuit filed by the American Civil Liberties Union(ACLU) challenging federal intelligence agencies' eavesdropping of international phone calls without obtaining court warrants.

The defendants, the National Security Agency (NSA), the Central Security Service and NSA Director and Chief of the Central Security Service, Lieutenant General Keith B. Alexander asserted that they cannot defend their case without exposing state secrets.

Judge Anna Diggs Taylor, US District Judge for the Eastern District of Michigan, wrote in an opinion that the defense argument was "without merit". "Defendants have supported these arguments without revealing or relying on any classified information," Taylor wrote in an opinion accompanying the ruling.

Judge Taylor also ruled that the tapping violates "the separation of powers enshrined in the Constitution, privacy and free speech."

The Bush Administration has been firmly committed to the wiretapping, known as the Terrorist Surveillance Program (TSP), and said the practice has a valid basis in law, despite public criticism. Defenders of the program contended that the President has the authority under the AUMF and the Constitution to authorize the continued use of the TSP.

Judge Taylor wrote in her 43-page opinion that, "We must first 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. So all 'inherent powers' must derive from that Constitution."

The ACLU filed the lawsuit to protect the privacy and unreasonable search of lawful verbal exchanges by journalists, lawyers and scholars among others. The court order ruled that powers granted by TSP violated the U.S. Separation of Powers doctrine, the Administrative Procedure Act, and the First and Fourth Amendments.

An appeal over the court decision is expected.

In 2001, President George W. Bush approved a program that allowed the NSA to monitor international calls for possible terrorist activity when one party to the call was outside U.S. territory. The government argued that the program is well within the president's authority. The Justice Department wrote, "In the ongoing conflict with al Qaeda and its allies, the president has the primary duty under the Constitution to protect the American people".