Judge Orders Halt to Domestic Spying


WASHINGTON, Aug. 17, 2006 — -- In a major legal rebuke to the Bush administration's assertive and often secretive handling of the war on terror, a federal judge in Michigan ordered the administration to immediately cease operation of its warrantless domestic surveillance program.

The decision by Judge Anna Diggs Taylor of the U.S. District Court for the Eastern District of Michigan, which comes in a lawsuit filed in January, will not be enforced until after a hearing on Sept. 7, when the federal government will have a chance to argue before the judge against today's decision.

Taylor refuted the government argument that the case be dismissed because a public defense of the program in court could jeopardize its efficacy as a tool in the war on terror.

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

Even if Taylor rules after the Sept. 7 hearing that the injunction should stand and the program should be shut down, further appeals from the government seem a foregone conclusion.

Still, the plaintiffs in the lawsuit, which include the American Civil Liberties Union, several journalists, and the Council on American-Islamic Relations, said they feared the government was monitoring their communications without a warrant.

"Today's ruling is a landmark victory against the abuse of power that has become the hallmark of the Bush administration," ACLU executive director Anthony D. Romero said. "Government spying on innocent Americans without any kind of warrant and without congressional approval runs counter to the very foundations of our democracy. We hope that Congress follows the lead of the court and demands that the president adhere to the rule of law."

Advocates of the program, both in Congress and inside the administration, said immediately that the ruling would weaken the United States in the war on terror.

White House Press Secretary Tony Snow said in a written statement that the administration "could not disagree with this ruling more."

Snow also invoked the recent foiling by British and Pakistani authorities of an alleged plot to blow up planes flying from England to the United States, though he did not say whether the domestic surveillance program yielded information used in the investigation.

The injunction is the first decisive action by the federal court system against the warrantless domestic spying program since press reports of the program, which were leaked to the New York Times, were published late in 2005.

In a 44-page decision, Taylor ruled that the terror surveillance program, as described by the White House and administration, violates both the Constitution and the Foreign Intelligence Surveillance Act of 1978.

Taylor disagreed with the Bush administration's argument that Congress had implicitly authorized the program when it authorized the use of force in executing the war on terror.

Attorney General Alberto Gonzales, at a press conference in Washington, defended the program as a vital part of the daily fight against terror. He said it is firmly rooted in established law and has been vetted on a regular, ongoing basis by lawyers both in the administration and at the National Security Agency, though not by outside attorneys.

Critics point out that Gonzales testified before a Senate committee in July that President Bush personally killed an internal Department of Justice inquiry into the program by declining to give the government lawyers at the Justice Department's Office of Professional Responsibility the security clearance to perform a review.

The program has become a political lightning rod on Capitol Hill, where lawmakers have grappled with how to oversee and potentially authorize a program that most of them know nothing about.

After initially declaring the program too important to national security to elaborate on it at all, the White House went on a public relations offensive with a number of speeches in which Bush, Gonzales and former NSA director (now CIA director) Gen. Michael V. Hayden used broad strokes to outline the program.

It was those very same speeches and fact sheets advertising the program as a tool in the war on terror that Taylor said contradicted the administration's claim that the program must remain secret.

Gonzales was asked at his press conference if he now regrets the public relations campaign.

"Obviously, that was a tactical decision that had to be made early on in this matter," he said. "The decision by the president is that it was sufficiently important to reassure the American people about the program."

It is unclear what effect today's ruling or the ensuing legal battle will have on Capitol Hill efforts to authorize it. After months of negotiations, the White House endorsed in July a bill written by Senate Judiciary Committee chairman Arlen Specter, R-Pa., that would essentially authorize the program blind (without the full Congress being involved) and would recognize the president's inherent constitutional authority to wiretap Americans he suspects of being terrorists without a warrant. The bill would be sent to the secret FISA court for a one-time review of the program's legality. If the FISA court ruled the program unconstitutional, the administration would have the opportunity to tweak it. It is unclear when or how that bill would come up for a vote this year.

Plaintiffs in the lawsuit are not happy with the Specter bill. ACLU legislative director Caroline Frederickson said she worries that because the bill would recognize that the president has the constitutional authority to wiretap, it would ignore checks and balances and offer only a "patina of oversight."

"When you pierce through, the document is much more window dressing," Frederickson said during a conference call with reporters after the ruling.

But one of the sponsors of Specter's bill, Sen. Dianne Feinstein, D-Calif., who is also a member of the Senate Intelligence Committee and so is fully briefed on the program, said the program is a necessary tool in the war on terror and could be made legal with a few legislative tweaks.

She criticized the Bush administration for not working with Congress earlier to find common ground.

"Now the federal judge in Detroit has rejected all of the administration's strained legal arguments and issued a ruling that this program violates FISA and is unconstitutional," Feinstein said in a written statement. "Because of the administration's strategy of brinkmanship, the NSA is staring at a permanent injunction that says this program must be shut down."

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