From Privacy Times, August 29, 2006

President Bush Violated Wiretap Law, Judge Rules

In a case that seems destined for the U.S. Supreme Court, a federal judge in Michigan has ruled that the National Security Agency’s secret domestic surveillance program (TSP) violates the

First and Fourth Amendment of the Constitution. Judge Anna Diggs Taylor concluded undisputedly that President Bush violated both Constitutional Amendments and the wiretap law.

President Bush and Attorney General Alberto Gonzalez have criticized the ruling and ordered the Justice Dept. to appeal. Moreover, Judicial Watch, a conservative watchdog group, assailed Judge Taylor for what it called a conflict of interest. The American Civil Liberties Union was a plaintiff in the case, and Judge Taylor was a member of the Community Foundation for Southeastern Michigan, which gave a total of $45,000 in recent years to the ACLU of Michigan.

In addition to the ACLU, plaintiffs in the case include Council on American-Islamic Relations, Greenpeace, National Association of Criminal Defense Attorneys, and authors James Bamford and Christopher Hitchens.

The government argued the allegations presented no more than a “chilling effect” based upon purely speculative fears that the TSP subjects the Plaintiffs to surveillance. But Judge Taylor said the fears were not so speculative, as plaintiffs alleged they continue to be damaged by the program. “The President indeed has publicly acknowledged that the types of calls Plaintiffs are making are the types of conversations that would be subject to the TSP … Numerous cases have granted standing where the plaintiffs have suffered concrete profession-related injuries comparable to those suffered by Plaintiffs here.”

Judge Taylor noted that the Foreign Intelligence Surveillance Act (FISA) gave the President broad leeway to conduct surveillance. “All of the above Congressional concessions to Executive need and to the exigencies of our present situation as a people, however, have been futile. The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in violation of the Fourth Amendment. The President of the United States is himself created by that same Constitution,” she wrote.

“In this case, the President has acted, undisputedly, as FISA forbids. FISA is the expressed
statutory policy of our Congress. The presidential power, therefore, was exercised at its lowest ebb and cannot be sustained,” she wrote

She also rejected Bush Administration claims that the surveillance was authorized by the Congressional resolution authorizing the use of military force in response to the 9/11 attacks.

“The irreparable injury necessary to warrant injunctive relief is clear, as the First and Fourth Amendment rights of Plaintiffs are violated by the TSP. The irreparable injury conversely sustained by Defendants under this injunction may be rectified by compliance with our Constitution and/or statutory law, as amended if necessary. Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution.”

“As Justice Warren wrote in U.S. v. Robel, 389 U.S. 258 (1967): 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. (ACLU, et al. v. NSA, et al.: USDC-E.D. Mich. – No. 06-CV-10204; Aug. 17.)