Judge Orders Halt to Domestic Spying

By Henry Weinstein

Los Angeles Times

August 17, 2006

A federal judge in Detroit ruled today that the government's warrantless wiretapping program is unconstitutional and must be stopped immediately.

U.S. District Judge Anna Diggs Taylor held that the wiretapping program violated the 1st and 4th Amendments to the Constitution, which protect free speech and prohibit unlawful searches. She also held that the surveillance program, run by the National Security Agency, violates the federal Administrative Procedures Act and the Separation of Powers doctrine.

However, she upheld the Justice Department's request to dismiss one aspect of the lawsuit filed by the American Civil Liberties Union. She threw out the part asking that the government's data-mining program be ruled unconstitutional, saying that litigation of that claim would violate the government's state secrets privilege.

The Bush administration immediately announced that it would appeal the ruling and asked that the decision be stayed until it has an opportunity to appeal. Taylor is expected to hold a hearing on the stay request on Sept. 7.

"We respectfully disagree with the decision of the judge," Atty. Gen Alberto R. Gonzales said.

He added that he was confident that the program was legal and "we will continue to utilize the program to ensure that America was safer."

Taylor, an appointee of President Jimmy Carter, became the first federal judge to rule that the surveillance program violated constitutional rights. She held two hearings on the issue this summer.

She said today that if the program was allowed to continue it clearly would irreparably harm the rights of the plaintiffs, which included the ACLU, the Council on American-Islamic Relations, Greenpeace and several individuals. "The public interest is clear," Taylor wrote.

In the response to the government's assertion that the program was needed for the defense of the nation, Taylor cited a 1967 decision of then-Chief Justice Earl Warren in her conclusion. "Implicit in the term 'national defense' is the notion of defending those values and ideas which set this nation apart It would indeed be ironic if, in the name of national defense, we would sanction the subversion of those liberties which makes the defense of the nation worthwhile."

She also quoted a 2004 opinion by Justice Sandra Day O'Connor, which rejected the Bush administration's claim that the war on terror gives him, as commander in chief, the unchecked power to imprison "enemy combatants."

O'Connor wrote: "It is during our most challenging and uncertain moments that our nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."

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After the program was revealed by the New York Times in December, the government admitted that it had launched a domestic wiretapping initiative after the Sept. 11 terrorist attacks. NSA personnel listen in on phone calls and obtain e-mails into and out of the U.S. involving suspected terrorist affiliates. The program bypasses the Foreign Intelligence Surveillance Court, created after government spying abuses in the 1970s. The court approves search and wiretapping warrants in some intelligence and terrorism-related investigations.

The ACLU and the other groups and several individuals, who expressed fears that the government was spying on them, filed a lawsuit in Detroit challenging the program. The Center for Constitutional Rights filed a similar suit in New York federal court the same day. That case is pending, as are others filed subsequently in Oregon and Texas.

The government has attempted to have the cases thrown out on two grounds. First, Justice Department lawyers have maintained that the plaintiffs have not demonstrated that they have been injured by the program. The government attorneys also argued that even if the plaintiffs could show that they were entitled to sue, the case should be barred because of the "state secrets" privilege.

That privilege, laid out in a Supreme Court decision in 1953, prohibits disclosure of information in legal proceedings when there is a "reasonable danger" that the evidence would "expose military matters which, in the interest of national security, should not be divulged."

Judge Taylor ruled for the plaintiffs on both issues. "Contrary to [the government's] arguments, the court is persuaded that plaintiffs are able to establish a prima facie case based solely" on the public admissions of government officials about the surveillance program, Taylor wrote.

Declarations submitted by the plaintiffs "establish that their communications would be monitored" under the surveillance program, the judge said. "Further, plaintiffs have shown that because of the existence of [the surveillance program] they have suffered a real and concrete harm. Plaintiffs' declarations state undisputedly that they 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," the judge wrote.

Taylor flatly rejected the government lawyers' contention that they could not defend the case without the exposure of state secrets.

"The Bush administration has repeatedly told the general public that there is a valid basis" for the surveillance program, Taylor wrote, adding that government officials have contended that the president has the authority for the program under the congressional authorization for use of military force after the 9/11 attacks and the Constitution. She said government officials supported these arguments without revealing or relying on any classified information.

"Indeed, the court has reviewed the classified information [in private] and is of the opinion that this information is not necessary to any viable defense to" the surveillance program. "Consequently, the court finds defendants' argument that they cannot defend this case without the use of classified information to be disingenuous and without merit."

But Taylor agreed that the government's dating-mining program could not be defended without violating the state secrets doctrine.

The Justice Department issued a statement saying, "The Terrorist Surveillance Program is a critical tool that ensures we have in place an early warning system to detect and prevent a terrorist attack. In the ongoing conflict with Al Qaeda and its allies, the president has the primary duty under the Constitution to protect the American people. The Constitution gives the president the full authority necessary to carry out that solemn duty, and we believe the program is lawful and protects civil liberties."

The ruling was hailed immediately by Sen. Patrick Leahy (D-Vt.), the ranking Democrat on the Judiciary Committee. "This has become another unfortunate example of how White House misdirection, arrogance and mismanagement have needlessly complicated our goal of protecting the American people," Leahy said. "I have always believed that the Bush-Cheney warrantless domestic spying program violated our laws…. By following the Constitution and our laws, we can protect both our security and our American values."

Senate Majority leader Bill Frist (R-Tenn.) called the decision "unfortunate," saying, "Terrorists are the real threat to our constitutional and democratic freedoms, not the law enforcement and intelligence tools used to keep America safe."

The Republican National Committee issued a more strident statement, headlined "Liberal Judge Backs Dem Agenda to Weaken National Security."

The ACLU agreed to stay the ruling until early September when Taylor is expected to hear the administration's request for a longer stay while it appeals. ACLU attorney Jameel Jaffer said the ACLU will oppose the request for a longer stay.

The administration's appeal will go to the U.S. 6th Circuit Court of Appeals. Based in Cincinnati, the 6th Circuit considers appeals from federal courts in Kentucky, Michigan, Ohio and Tennessee.

Times staff writers Rick Schmitt and Richard Simon in Washington contributed to this article.