A federal judge in Detroit yesterday ruled that President Bush’s domestic terrorist surveillance program is unconstitutional, agreeing with a challenge from the American Civil Liberties Union and a group of lawyers, academics and journalists.
“The irreparable injury necessary to warrant injunctive relief is clear, as the First and Fourth Amendment rights of plaintiffs are violated” by the surveillance program, said U.S. District Judge Anna Diggs Taylor. “The irreparable injury conversely sustained by defendants under this injunction may be rectified by compliance with our Constitution.
“The public interest is clear in this matter,” said Judge Diggs Taylor, who was appointed to the federal bench in 1979 by President Carter. “It is the upholding of our Constitution.”
The judge granted a permanent injunction halting the program but delayed implementing her order pending the outcome of the Justice Department’s appeal, which was filed immediately.
The Justice Department said the National Security Agency’s terrorist surveillance program authorized by Mr. Bush was “an essential tool for the intelligence community” in the nation’s ongoing war on terror. It called the program “a critical tool that ensures we have in place an early warning system to detect and prevent a terrorist attack.
“In the ongoing conflict with al Qaeda and its allies, the president has the primary duty under the Constitution to protect the American people,” the department said. “The Constitution gives the president the full authority necessary to carry out that solemn duty, and we believe the program is lawful and protects civil liberties.”
Attorney General Alberto R. Gonzales yesterday described the program’s scope as “very narrow,” saying it focused only on communications with al Qaeda.
He said that it has been “very effective” in protecting America and that reviews of it by lawyers at Justice and the NSA found it to be legal. He said he was “disappointed” by the ruling.
“We respectfully disagree with the decision of the judge, and we have appealed the decision. There is a stay in place, and so we will continue to utilize the program to ensure that America is safer,” he said. “The president is doing what he believes is necessary, consistent with the Constitution, to protect this country from further attacks from al Qaeda.”
White House spokesman Tony Snow said that the Bush administration’s program, implemented after the September 11 terrorist attacks, is “firmly grounded in law and regularly reviewed to make sure steps are taken to protect civil liberties” and that the administration “couldn’t disagree more” with the judge’s ruling.
“Last week, America and the world received a stark reminder that terrorists are still plotting to attack our country and kill innocent people,” Mr. Snow said. “United States intelligence officials have confirmed that the program has helped stop terrorist attacks and saved American lives.
“The program is carefully administered, and only targets international phone calls coming into or out of the United States where one of the parties on the call is a suspected al Qaeda or affiliated terrorist,” he said. “The whole point is to detect and prevent terrorist attacks before they can be carried out. That’s what the American people expect from their government, and it is the president’s most solemn duty to ensure their protection.”
The ruling came in a lawsuit by the ACLU, which challenged the legality of the NSA program, saying it intercepted “without benefit of warrant or other judicial approval” the international telephone and Internet communications of numerous people and organizations in the U.S. The ACLU said the program had substantially chilled and impaired its clients’ constitutionally protected communications.
ACLU Executive Director Anthony Romero told reporters that the opinion was “another nail in the coffin in the Bush administration’s legal strategy in the war on terror.”
Senate Majority Leader Bill Frist, Tennessee Republican, called the ruling an “unfortunate decision,” adding that terrorists were “the real threat to our constitutional and democratic freedoms” and not the law-enforcement and intelligence tools used to keep America safe.
He said the country needed to “strengthen, not weaken” its ability to prevent terrorist plots.
Sen. Patrick J. Leahy of Vermont, the Senate Judiciary Committee’s ranking Democrat, yesterday said the ruling highlighted “another unfortunate example of how White House misdirection, arrogance and mismanagement have needlessly complicated our goal of protecting the American people.”
Critics of the program have argued that the administration should use the powers granted it under the Foreign Intelligence Surveillance Act (FISA).
“I have always believed that the Bush-Cheney warrantless domestic spying program violated our laws,” Mr. Leahy said. “We can and should wiretap terrorists under the current FISA law. The problem has been the Bush-Cheney administration’s insistence on doing it illegally, without checks and balances to prevent abusing the rights of Americans.”
House Minority Leader Nancy Pelosi of California, while calling the decision a “repudiation” of the administration, invited the president “to work with Congress to devise tough, effective, and lawful ways to monitor the communications of suspected terrorists.”
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