By Sarah Olson Truthout 8/18/06

    Judge Anna Diggs Taylor, of the US District Court in Detroit, Michigan, handed the American Civil Liberties Union and their supporters a stunning victory yesterday when she ruled the National Security Agency’s warrantless wiretapping program was unconstitutional. Taylor ruled the secret program violated the First and Fourth Constitutional amendments, as well as the separation of powers principle. She also ruled the surveillance program was not sanctioned by the Authorization of the Use of Military Force, nor was it protected from judicial scrutiny by the State Secrets Act as the Department of Justice had argued.

    In the landmark decision yesterday, Taylor wrote: “It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights.”

    The ruling is the first federal challenge to the wiretapping program allowing the NSA to secretly listen to phone calls placed from the US to foreign countries. The Bush administration says the program is used only on a limited number of “terrorist suspects,” in extreme cases when it’s not convenient to wait for a Foreign Intelligence Surveillance Act (FISA) court warrant. In turn, the ACLU and other civil liberties advocates argue the program violates Constitutionally protected rights to privacy and free speech, and has a chilling effect on communication.

    Citing the 1967 US v. Robel ruling, Judge Taylor wrote, “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 make the defense of the Nation worthwhile.”

    Ann Beeson is the ACLU’s associate legal director and the lead attorney for the plaintiffs in this case. In a statement yesterday, she said, “By holding that even the president is not above the law, the court has done its duty.”

    Virginia Kerry, with NSA Public Affairs and Communications, declined to comment on the ruling yesterday, saying, “It would inappropriate to comment on matters of litigation; therefore, we have no information to provide.”

    The Department of Justice said the Terrorist Surveillance Program is an essential tool for the war on terror, and the Department of Justice has appealed the ruling. “The Terrorist Surveillance Program is a critical tool that ensures we have in place an early warning system to detect and prevent terrorist attacks. In the ongoing conflict with al-Qaeda and its allies the President has the primary duty under the Constitution to protect the American people.”

    James Bamford is the best-selling author of Pretext for War: 9/11, Iraq, and the Abuse of America’s Intelligence Agencies and many other books, and is an authority on the NSA. He joined the ACLU’s lawsuit, saying: “When NSA was allowed to operate in absolute secrecy, without oversight, it became a rogue agency.” Bamford disagrees with the argument that this program protects US citizens against terrorism. “I haven’t heard of any great accomplishments this program has had,” he said. “In fact, I think there is more legitimacy to the argument this program is more of a hindrance than a help.”

    Bamford says he’s concerned about the possible abuses of individual rights to speech and privacy and about letting a federal surveillance program exist in secret and without public or Congressional oversight, knowledge, or discussion. “To see what happens when there is no regulation on a surveillance program, take a look at the do-not-fly list. There is something like 20,000 names on it.”

    It’s difficult, Bamford says, to know whether or not the NSA is surveiling you. Consequently, if a person is turned down for a small business loan, or rejected from a job with the federal government, it’s possible that no one would tell the applicant his name appeared on a NSA security list. “Average Americans can fall into this web and not know about it and not be able to do anything about it. Typically, we have a system of checks and balances, but here, the NSA is judge, jury, and executioner.”

    Larry Diamond is another ACLU plaintiff against the NSA. He is Senior Fellow at the Hoover Institution, Stanford University. He says: “If the President can construe the law to mean what he wants it to mean, rather than follow what the Congress intended or get the Congress to change and modernize the law, then we no longer live under a rule of law, and our democracy is at risk. We cannot fight for freedom abroad by surrendering it at home.”

    Diamond is concerned that the NSA warrantless wiretapping program will have an adverse impact on free academic research and communication between countries. “One reason why the United States is held in such low esteem in other parts of the world today is because we are seen as hypocritical: We say we favor the rule of law, but we violate it when it suits us. We are against torture, but we won’t unequivocally commit never to practice it. We pressure regimes to adhere to international human rights standards, and then we turn over terrorism suspects to their security agencies, knowing full well these suspects will be tortured. We say we favor democracy and human rights, but we ally with abusive regimes whenever we feel we need to. We vow to promote individual freedom as the central purpose of our foreign policy, and then we violate individual freedom with this secret, warrantless surveillance.”

    Immigrant communities have suffered disproportionately under this program. Kareem Shora is the Director of Legal Policy at the Arab-American Anti-Discrimination Committee, which also signed onto the amicus brief. He lauded the court’s decision yesterday, and said that if left unchecked, programs like the NSA’s surveillance and wiretapping program would eventually render the Constitution meaningless.

    Shora says this program has a chilling effect on speech in immigrant communities. “People in the Arab American community who make calls to the old country typically speak to their families in Arabic. This program has had a chilling effect on that communication.” Shora says the US government is not known for its cultural and linguistic sensitivity when it comes to Arab cultures. “These conversations in Arabic are pick up by intelligence personnel and translated. If these translations are off by even one word, the entire meaning of a conversation can be changed and people are detained unnecessarily.” In fact, entire families and communities have been ripped apart by these types of intelligence errors, Shora says.

    Shora believes it’s important to look at the NSA wiretapping surveillance program within the context of a number of post-9/11 policies that have served to frighten and harass immigrant communities. These programs include the now-suspended special registration program, the voluntary interview program, and government surveillance programs.

    Leading democratic politicians reacted quickly to the ruling. Congressman John Conyers (D-Mich.), ranking member on the House Judiciary Committee, while upholding the necessity and importance of fighting terrorism at home and abroad, said, “I don’t believe we advance the cause of fighting terrorism if our government takes Constitutionally dubious shortcuts of little law enforcement value that alienate the very groups in this country whose cooperation is central to fighting this seminal battle.”

    Russ Feingold, the ranking member of the Senate Judiciary Committee, has been trying to get Congressional support for censure of President Bush for his authorization of the NSA surveillance program since March. “Today’s district court ruling is a strong rebuke of this administration’s illegal wiretapping program,” Feingold said on Thursday. “The President must return to the Constitution and follow the statutes passed by Congress. We all want our government to monitor suspected terrorists, but there is no reason for it to break the law to do so. The administration went too far with the NSA’s warrantless wiretapping program. Today’s federal court decision is an important step toward checking the President’s power grab.”

    Numerous civil rights organizations have signed onto the ACLU lawsuit with friends-of-the-court statements. Today, the Asian American Legal Defense and Education Fund’s executive director Margaret Fung said, “We are heartened that the Michigan federal court has struck down the Bush Administration’s NSA domestic spying program. This is a tremendous victory for the Asian American community and for all Americans who cherish their rights to free speech and privacy. The President is not above the law, and these governmental abuses of power must end.”

    For now, Judge Taylor’s ruling has handed the ACLU a substantial victory. The Department of Justice has appealed the case, and has announced that both parties have agreed to a temporary stay of Judge Taylor’s injunction against the warrantless wiretapping program until the court can hear the Department of Justice’s motion for a stay pending appeal.

    Sarah Olson is an independent journalist and radio producer. You can reach her at