NSA wiretapping is found to be illegal

Say it ain’t so?  Progressives have said this since last December that the program was illegal.  The whole first chapter of Glenn Greenwald’s book, How Should the Patriot Act?, clearly delineates how the program is illegal.  This was actually a no-brainer.  Again, let me state for the record, that I believe that domestic surveillance is important.  It is an important tool in the war against terrorism.  This tool should be used within the scope of the law.  All domestic surveillance should be overseen by the courts.  Domestic surveillance without oversight leads to abuse.  Finally, remember that the FISA laws were written during the Cold War (the late 1970s).  At that time we had a risk of nuclear annihilation.  There is a special war provision of the FISA laws. Do not buy the neoconservatives argument that this is a special time and a special threat.  The law is flexible and it works.

Go here to read the actual FISA law.

WaPo has the story:

By Dan Eggen
Washington Post Staff Writer
Thursday, August 17, 2006; 2:42 PM


A federal judge in Detroit ordered a halt to the National Security Agency’s warrantless surveillance program, ruling for the first time that the controversial effort ordered by President Bush was unconstitutional.

U.S. District Judge Anna Diggs Taylor wrote in a strongly-worded 43-page opinion that the NSA wiretapping program violates privacy and free-speech rights and the constitutional separation of powers between the three branches of government. She also found that it violates a 1978 law set up to oversee clandestine surveillance.


The judge’s opinion 

Glenn Greenwald, a lawyer and blogger, has much more analysis on this legal topic:

I have read the opinion. Here is my immediate analysis of it. It is a very strong opinion in some places, weak in others, but is rather straightforward — and sometimes eloquent — in its almost always unequivocal rejection of the Bush administration’s arguments:

First, the court rejected the administration’s assertion of the “state secrets” doctrine with regard to the NSA eavesdropping program on the ground that the program has already been publicly confirmed by the administration, and that all of the known facts necessary to rule on the plaintiffs’ claims — namely, that the administration is eavesdropping without warrants — are already publicly known. The court adopted the reasoning of Judge Walker who, as noted above, rejected the administration’s invocation of this doctrine on the same ground.

(The court here did, however, grant the administration’s motion to dismiss the part of the case challenging the constitutionality of the data-mining program, on the ground that it has not yet been confirmed, and litigation of its legality would therefore require disclosure of state secrets).

Second, the court ruled that the plaintiffs have standing to challenge the legality of the NSA program even though they cannot prove they have been eavesdropped on, because they have suffered actual harm merely from knowing that the Government is eavesdropping. They all allege that they have extensive communications with the Middle East by telephone and fear that the administration is listening in without a warrant. Some are attorneys who fear the administration is eavesdropping on their conversations with their clients and witnesses, and they allege that these clients and witnesses have ceased communicating with them openly as a result.

Thus, the court held that these plaintiffs are suffering actual harm in their ability to carry out their professional duties as a result of the administration’s warrantless eavesdropping program. That actual harm confers on them standing to challenge the legality of the program. The court also emphasized, in an excellent section I will quote shortly, that it is vital to our democracy that the administration’s conduct not remain beyond the reach of judicial scrutiny.

Third, the court ruled — rather emphatically and without much doubt — that warrantless eavesdropping violates the Fourth Amendment’s prohibition on unreasonable searches and seizures (generally speaking, searches undertaken in the absence of a probable cause warrant). Citing the 1972 Supreme Court decision in the Keith case (more on that here) — which held that warrantless eavesdropping is unconstitutional in the context of investigating domestic terrorist groups — the court held (admittedly without much reasoning or even explicit arguments) that the same reasoning applies to make warrantless eavesdropping unconstitutional in the context of investigating international terrorist groups.

Fourth, the court ruled independently — again, without all that much reasoning — that the NSA program violates the plaintiffs’ First Amendment rights, apparently because it chills (deters) their free expression. Since the plaintiffs know the Government can eavesdrop without warrants on conversations of those groups and individuals deemed “subversive,” the program abridges free expression in a way that the First Amendment prohibits.

Fifth, the court relied upon Youngstown to hold that the Executive’s powers in the national security area do not entitle him to act beyond the law or the Constitution, and that courts are empowered under our Constitution to enjoin and restrict the exercise even of national security powers, even in times of war, when the President’s conduct violates the law or the Constitution.

(Because Glenn is a lawyer, he is somewhat verbose.  He has even more on this on his blog.  Here.

The Justice Department said that it was appealing the decision and that the parties to the lawsuit had agreed to delay the judge’s order until the appeal could be heard.

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Errington C. Thompson, MD

Dr. Thompson is a surgeon, scholar, full-time sports fan and part-time political activist. He is active in a number of community projects and initiatives. Through medicine, he strives to improve the physical health of all he treats.


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