Aug. 21, 2006

On August 17, a federal judge in Detroit issued a ruling to halt the National Security Agency’s warrantless wiretapping program.

But Judge Anna Diggs Taylor said the American Civil Liberties Union (ACLU) could not sue to stop a separate program (the data mining of telecommunications records), since to do so would force the disclosure of secret information.

The NSA is “permanently enjoined from directly or indirectly utilizing the TSP (Terrorist Surveillance Program, the official name of the NSA’s warrantless-wiretapping program) in any way, but not limited to, conducting warrantless wiretaps of telephone and Internet communications, in contravention of the Foreign Intelligence Surveillance Act.

It is further ordered and declared that the TSP violates the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the Constitution, FISA and the wiretap statute,” wrote Taylor.

Taylor, an appointee of former President Jimmy Carter, is the first federal judge to rule the TSP to be unconstitutional.

While Judge Taylor said the NSA wiretapping program must be halted, the Department of Justice said the ACLU had agreed to stay Taylor’s decision pending the Justice Department’s appeal to the U.S. Court of Appeals for the 6th Circuit.

However, the ACLU said it will in fact oppose the stay. The ACLU said it will allow the program to continue at least until a hearing on the stay motion. That hearing is scheduled for Sept. 7.

“The TSP 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,” said DoJ in a statement.

“Government spying on innocent Americans without any kind of warrant and without congressional approval runs counter to the very foundations of our democracy,” said Anthony Romero, ACLU executive director.

“Those who herald this decision simply do not understand the world we live in,” said President Bush.

“This country is at war. We must give those whose job it is to protect us the tools they need. I strongly disagree with the decision. I believe our appeal will be upheld. The American people expect us to protect them so I put this program in place.

If Al Quaeda is calling into the United States we want to know what it is saying.”

The NSA’s warrantless-wiretapping program, acknowledged by the Bush administration following a New York Times story on the program in December, reportedly intercepts communications with parties suspected to have connections to Al Quaeda coming from overseas.

A somewhat separate data-mining program, first reported by USA Today in the spring, reportedly looks for calling patterns in telecommunications records that may indicate a connection to nefarious organizations overseas.

While Taylor found that sufficient details of the TSP were in the public domain for the ACLU to bring suit and for DoJ to defend the program without revealing state secrets, the same, she said, is not true for the data mining of telecommunications records as reported by USA Today.

“ACLU cannot establish a prima facie case to support their data-mining claims without the use of privileged information and further litigation of this issue would force the disclosure of the very thing the privilege is designed to protect,” wrote Taylor.

The ACLU said the Taylor decision should force congressional action, but it fears that such action will only make the situation worse.

“Congress needs to do its job and stop the president from violating the law,” said the ACLU.

“The White House has stonewalled congressional attempts to investigate the administration’s circumvention of the Foreign Intelligence Surveillance Act.

President George W. Bush personally blocked a DoJ investigation regarding the NSA’s warrantless-wiretapping program. Although Congress lacks a full understanding of the facts, several bills have been introduced that would reward the government’s illegal actions by changing the law to legitimize the program.”

But Republican lawmakers had a different take. “It is disappointing that a judge would take it upon herself to disarm America during a time of war,” said Rep. Pete Hoekstra (R-Mich.), chairman of the House Intelligence Committee.

Source: RCR News