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US cyber-spying must stop now, says judge
It's unconstitutional...

By Anne Broache

Published: Friday 18 August 2006

The warrantless internet and telephone surveillance programme authorised by the Bush administration violates the US Constitution and must cease immediately, a federal judge ruled on Thursday.

The landmark decision makes US District Judge Anna Diggs Taylor in Detroit the first judge to strike down the National Security Agency's once-secret programme. The American Civil Liberties Union (Aclu) had filed suit against the government, claiming the programme "ran roughshod" over the constitutional rights of millions of Americans and ran afoul of federal wiretapping law.

In a sweeping victory for the Aclu and its clients, which included organisations representing criminal defence lawyers, journalists, Islamic-Americans and academics, Judge Taylor appeared to knock down several major legal arguments the Bush administration has used to defend the programme since it was revealed by The New York Times last December.

The judge wrote in her 43-page opinion: "Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution."

The decision immediately drew an appeal from the US Department of Justice, which argued in a statement that "the Terrorist Surveillance Programme is an essential tool for the intelligence community in the War on Terror". The Bush administration also requested the judge's opinion be put on hold until the appeals process is complete.

Meanwhile, the parties agreed to a temporary stay of the opinion, which allows the surveillance programme to continue operating, until a 7 September hearing to address the government's request for a lengthier stay.

The terrorist surveillance programme, Judge Taylor ruled, violates the First Amendment's right to freedom of expression and the Fourth Amendment right to privacy - that is, freedom from unreasonable searches. It also ignores requirements of a 1978 electronic wiretapping law known as the Foreign Intelligence Surveillance Act (Fisa) and represents an overstepping of presidential powers, she wrote.

Dismissing the Bush administration's argument that the warrantless programme falls within the President's inherent wartime powers as commander in chief, she wrote: "There are no hereditary kings in America and no powers not created by the Constitution."

The judge, who was appointed by President Carter in 1979, also dismissed the government's request that the suit be thrown out because of the "state secrets privilege", which permits the government to suppress a lawsuit that might lead to the disclosure of military secrets.

Aclu executive director Anthony Romero said in a conference call with reporters: "We are enormously gratified with the court's historic ruling today. At its core, today's ruling addresses the abuse of presidential power and reaffirms a system of checks and balances that's necessary in our democracy."

The Justice Department disputed the judge's conclusions, referring again to the programme as a "critical tool" for detecting and preventing terrorist attacks.

The White House press secretary also blasted Judge Taylor's decision, saying in a statement the Bush Administration "couldn't disagree more" with the ruling. He pointed to revelations just last week of a terrorist plot to blow up transatlantic airliners, which netted at least 24 arrests overseas.

Clients defended by Aclu in the suit praised the district court's decision, saying it would allow them to carry out their professional duties without fear of being spied upon.

Anne Broache writes for CNET News.com