August 18, 2006
Judge Finds Wiretap Actions Violate the Law
By ADAM LIPTAK and ERIC LICHTBLAU, NY TIMES
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A federal judge ruled yesterday that the National Security Agency’s program to wiretap the international communications of some Americans without a court warrant violated the Constitution, and she ordered it shut down.

The ruling was the first judicial assessment of the Bush administration’s arguments in defense of the surveillance program, which has provoked fierce legal and political debate since it was disclosed last December. But the issue is far from settled, with the Justice Department filing an immediate appeal and succeeding in allowing the wiretapping to continue for the time being.

In a sweeping decision that drew on history, the constitutional separation of powers and the Bill of Rights, Judge Anna Diggs Taylor of United States District Court in Detroit rejected almost every administration argument.

Judge Taylor ruled that the program violated both the Fourth Amendment and a 1978 law that requires warrants from a secret court for intelligence wiretaps involving people in the United States. She rejected the administration’s repeated assertions that a 2001 Congressional authorization and the president’s constitutional authority allowed the program.

“It was never the intent of the framers to give the president such unfettered control, particularly when his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights,” she wrote. “The three separate branches of government were developed as a check and balance for one another.”

Republicans said the decision was the work of a liberal judge advancing a partisan agenda. Judge Taylor, 73, worked in the civil rights movement, supported Jimmy Carter’s presidential campaign and was appointed to the bench by him in 1979. She was the first black woman to serve on the Detroit federal trial court.

She has ruled for the A.C.L.U. in a lawsuit challenging religious displays on municipal property. But she has also struck down a Detroit ordinance favoring minority contractors. “Her reputation is for being a real by-the-books judge,” said Evan H. Caminker, the dean of the University of Michigan Law School.

The government said it would ask Judge Taylor to stay her order at a hearing on Sept. 7.

The Justice Department and the American Civil Liberties Union — which brought the case in Detroit on behalf of a group of lawyers, scholars, journalists and others — agreed that her order would not be enforced until then, but lawyers for the A.C.L.U. said they would oppose any further stay.

Administration officials made it clear that they would fight to have the ruling overturned because, they said, it would weaken the country’s defenses if allowed to stand.

Attorney General Alberto R. Gonzales, at a hastily called news conference after the decision, said he was both surprised and disappointed by the ruling on the operation, which focuses on communications of people suspected of ties to Al Qaeda.

Administration officials “believe very strongly that the program is lawful,” said Mr. Gonzales, a main architect of the program as White House counsel and the biggest defender of its legality in a series of public pronouncements that began after the program was disclosed by The New York Times last December.

“We’re going to do everything we can do in the courts to allow this program to continue,” he said, because it “has been effective in protecting America.”

Tony Snow, the White House spokesman, also described the surveillance program as a vital and lawful tool. “The whole point is to detect and prevent terrorist attacks before they can be carried out,” Mr. Snow said. “The terrorist surveillance program is firmly grounded in law and regularly reviewed to make sure steps are taken to protect civil liberties.”

Democrats applauded the ruling as an important affirmation of the rule of law, while lawyers for the A.C.L.U. said Judge Taylor’s decision was a sequel to the Supreme Court’s decision in June in Hamdan v. Rumsfeld that struck down the administration’s plans to try detainees held in Guantánamo Bay, Cuba, for war crimes.

“It’s another nail in the coffin of executive unilateralism,” said Jameel Jaffer, an A.C.L.U. lawyer.

But allies of the administration called the decision legally questionable and politically motivated.

“It is an appallingly bad opinion, bad from both a philosophical and technical perspective, manifesting strong bias,” said David B. Rivkin, an official in the administrations of President Ronald Reagan and the first President Bush. “It is guaranteed to be overturned.”

Mr. Gonzales would not say whether the program played any role in foiling a plot last week to set off bombs in airliners bound for the United States from Britain. But Speaker J. Dennis Hastert, Republican of Illinois, suggested that it did play a role in the investigation.

In a written statement criticizing Judge Taylor’s ruling, Mr. Hastert defended the wiretapping operation and said that “our terrorist surveillance programs are critical to fighting the war on terror and saved the day by foiling the London terror plot.”

His office declined to elaborate.

Mr. Gonzales said he expected that the ruling would play a role in the debate in Congress over how and whether to change federal eavesdropping laws. But he said the exact impact was “hard to predict.”

Among competing proposals, Republican leaders have proposed legislation that would specifically permit the wiretapping program. Some Democrats, however, have introduced legislation that would restrict, or in some cases ban altogether, the government from conducting wiretaps on Americans without a warrant.

The White House is backing a plan, drafted by Senator Arlen Specter, Republican of Pennsylvania, with the blessing of President Bush, that would allow a secret court to review the legality of the operation.

But in the view of critics, it could also broaden the president’s authority to conduct such operations. Mr. Gonzales said it appeared to administration lawyers that the Specter legislation, if passed by Congress, “would address some of the concerns raised by the judge in her opinion.”

Another element of the Specter legislation would force other lawsuits over the program — like the one brought by the A.C.L.U. in Detroit — to be consolidated into a single action to be heard by the secret court.

Judge Taylor rejected the government’s threshold argument that she should not hear the case at all because it concerned state secrets. Dismissal on those grounds was not required, she wrote, because the central facts in the case — the existence of the program, the lack of warrants and the focus on communications in which one party is in the United States — have been acknowledged by the government.

The government also argued that the plaintiffs lacked standing to sue because they had not suffered concrete harm from the program. Judge Taylor ruled that the plaintiffs “are stifled in their ability to vigorously conduct research, interact with sources, talk with clients and, in the case of the attorney plaintiffs, uphold their oath of providing effective and ethical representation of their clients.”

Some plaintiffs, the judge wrote, have had to incur travel expenses to visit clients and others to avoid possible monitoring of their communications.

Going beyond the arguments offered against the wiretapping program by many legal scholars, Judge Taylor ruled that it violated not only the 1978 law, the Foreign Intelligence Surveillance Act, but also the Fourth Amendment, which prohibits unreasonable searches and seizures.

The Supreme Court has never addressed the question of whether electronic surveillance of partly domestic communication violates the Fourth Amendment. Judge Taylor concluded that the wiretapping program is “obviously in violation of the Fourth Amendment.”

The president also violated the Constitution’s separation of powers doctrines, Judge Taylor ruled. Neither a September 2001 Congressional authorization to use military force against Al Qaeda nor the president’s inherent constitutional powers allow him to violate the 1978 law or the Fourth Amendment, she said.

“There are no hereditary kings in America and no powers not created by the Constitution,” she wrote, rejecting what she called the administration’s assertion that the president “has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution itself.”

Republicans attacked the decision. “It is disappointing that a judge would take it upon herself to disarm America during a time of war,” said Representative Peter Hoekstra, Republican of Michigan, the chairman of the House Intelligence Committee.

Judge Taylor did give the government a minor victory, rejecting on national security grounds a challenge to a separate surveillance program involving data mining. That ruling is consistent with recent decisions of federal courts in San Francisco and Chicago.

Judges in those cases drew a distinction between the wiretapping program, which the administration has acknowledged and defended, and the data mining program, which has not been officially confirmed.

Administration and Critics, in Senate Testimony, Clash Over Eavesdropping Compromise
By ERIC LICHTBLAU (NYT) July 27, 2006
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WASHINGTON, July 26 - Senior Bush administration officials said Wednesday that it would be impractical for them to obtain individual warrants every time they needed to eavesdrop on a conversation suspected of involving Al Qaeda. They urged Congress to approve a proposal that critics said would give the president broad, unchecked powers.
In testimony to the Senate Judiciary Committee, Gen. Michael V. Hayden, director of the Central Intelligence Agency, called the proposal, developed by Senator Arlen Specter and the White House, 'a great opportunity' to modernize intelligence-gathering procedures in a way that would 'protect our liberty and security.'

General Hayden's testimony, and that of two other senior officials, amounted to the administration's first pitch for the Specter-White House agreement. Under the proposal, the Foreign Intelligence Surveillance Court, which meets in secrecy to rule on usual government requests for warrants in intelligence cases, would decide whether the administration's program of monitoring international communications of Americans without warrants is constitutional.

But critics attacked the agreement Wednesday as abdication to the White House. Mr. Specter, the Pennsylvania Republican who heads the Judiciary Committee, appeared particularly stung at the hearing when a civil liberties advocate, James X. Dempsey, told him he would prefer to see no legislation at all, allowing the National Security Agency to continue wiretapping Americans without warrants, than Congressional approval of procedures outside the scope of the 1978 law that created the secret court.

In agreeing to that court's review of the N.S.A. program, the White House had insisted that the bill include language implicitly recognizing the president's 'constitutional authority' to collect foreign intelligence beyond the provisions of the 1978 law. Mr. Dempsey, policy director of the Center for Democracy and Technology, said at the hearing that he appreciated Mr. Specter's efforts to bring the N.S.A. program under judicial review but that 'the price you paid for that simple concession is far too high.'

The proposal, he said, 'would turn the clock back to an era of unchecked presidential power, warrantless domestic surveillance and constitutional uncertainty.'

Mr. Specter grew testy over the attack, saying President Bush's agreement to submit the program to the intelligence court was no simple concession.

'Have you ever gotten a concession from a president?' he demanded of Mr. Dempsey.

'I would just suggest to you,' the senator said, 'that given the president's attitude on the surveillance program and his attitude on executive power generally that it was not a simple concession, but really was quite a breakthrough.'

Mr. Specter now finds himself in the unlikely position of White House ally after months as an antagonist.

He has been the leading Republican critic of the legality of the N.S.A. program and of the president's broad reading of presidential power. He has clashed with Vice President Dick Cheney over White House efforts to prevent telecommunications industry executives from having to testify before Congress about data they have provided to the agency. And just an hour after Wednesday's hearing concluded, he introduced a bill telling the courts that in interpreting law, they cannot rely on presidential 'signing statements.'

Mr. Bush has made frequent use of the signing statements in asserting authority to disregard or selectively enforce provisions of laws like the USA Patriot Act and those on torture restrictions if he believes they infringe on his constitutional powers. Mr. Specter said his legislation would seek to ensure that the statements 'are not being used in an unconstitutional manner.'

Still, the senator is in step with the administration over how Congress should respond to the controversy over the eavesdropping program. In pushing for passage of the agreement, General Hayden and two other officials at the hearing -- Lt. Gen. Keith B. Alexander, director of the N.S.A., and Steven G. Bradbury, acting assistant attorney general -- stressed that the 1978 law had not kept pace with changing technology.

General Alexander said the complexities of global telecommunications would pose a 'tremendous burden' for his agency if it had to get a warrant every time a foreign target with suspected ties to Al Qaeda was communicating with someone who might be in the United States.

'You would be so far behind the target, if you were in hot pursuit, with the numbers of applications that you would have to make and the time to make those, you could never catch up,' he said.

Poor President Bush. Just when he thought it was safe to monitor the phone calls and e-mails of ordinary citizens, a federal judge has to spoil his fun. Senior U.S. District Judge Anna Diggs Taylor, ruling in a case brought against the Bush administration by the American Civil Liberties Union and others, issued a 44-page opinion finding that the National Security Agency's wiretap program violates the First and Fourth Amendments to the Constitution, the separation of powers doctrine, statutory law and the Administrative Procedures Act.

Reaction from bloggers was swift and sweeping. Many thought that Judge Taylor reached the right legal outcome, but used weak or even wrong reasoning to get there. Among the comments:

Jack Balkin: "Although the court reaches the right result -- that the program is illegal, much of the opinion is disappointing, and I would even suggest, a bit confused. ... It is quite clear that the government will appeal this opinion, and because the court's opinion, quite frankly, has so many holes in it, it is also clear to me that the plaintiffs will have to relitigate the entire matter before the circuit court, and possibly the Supreme Court. The reasons that the court below has given are just not good enough. This is just the opening shot in what promises to be a long battle."
Glenn Greenwald: "This is not the most scholarly opinion ever. It has argumentative holes in it in several important places. But it is correct in its result and it is an enormous victory for the rule of law. It took real courage for Judge Diggs Taylor to issue this Opinion and Order -- it is hard to overstate how much courage it took."
Eugene Volokh: "(T)he real foundation of this decision is FISA. If Congress prohibited this sort of eavesdropping via FISA, and didn't carve out an exception under the (Authorization for Use of Military Force), then the program is indeed illegal (since I don't think the President's inherent power argument much works here, even as to violations of a statute). If FISA doesn't apply, though, then the program is permissible, because there's no First or Fourth Amendment violation here."
Corrente: "(D)on’t pop the champagne just yet; no triumphalism is warranted (especially since this decision has to run the gauntlet of a Federal judiciary system now headed by Scalito and Roberts)."
Politech: "Now for the next question: How will we know whether the illegal spying has stopped?"
Overlawyered: "While the decision contains a wealth of flowery language reminiscent of, say, a post by a libertarian blawger, it is rather weak on actual analysis. On the other hand, what little analysis it contains is spot-on accurate."
Marty Lederman: "Judge Taylor did not contend sufficiently with the strongest government arguments on the 'special needs' doctrine. Her decision would have been much stronger had she thoroughly explained why the program violates FISA, and why the government's Article II argument is wrong."