In 2001, following the events of 9/11, President Bush secretly
authorised the National Security Agency (NSA) to conduct electronic
surveillance of people within the US, without a warrant. It became
public following a New York Times report last December.
Yesterday, US District Court Judge Anna Diggs Taylor ruled that
the NSA programme violates Americans’ rights to free speech and
privacy under the First and Fourth Amendments of the Constitution,
and runs counter to the Foreign Intelligence Surveillance Act
(FISA), which requires the executive branch to obtain a warrant
before engaging in electronic surveillance of Americans.
Judge Taylor also rejected the Government’s argument that the
case could not proceed because of state secrets, saying that facts
about NSA wiretapping have already been conceded by the
Government.
The American Civil Liberties Union (ACLU) brought the case
against the NSA on behalf of journalists, scholars and lawyers who
say that the programme is disrupting their ability to communicate
effectively with sources and clients. The Bush administration
argued that the programme is necessary to protect Americans.
"Today’s ruling is a landmark victory against the abuse of power
that has become the hallmark of the Bush administration," said
Anthony Romero, Executive Director of the ACLU. "Government spying
on innocent Americans without any kind of warrant and without
Congressional approval runs counter to the very foundations of our
democracy."
"By holding that even the president is not above the law, the
court has done its duty under our Constitution to serve as a check
on executive power," added ACLU Associate Legal Director Ann
Beeson, who argued the case before Judge Taylor. "Throwing out the
Constitution will not make Americans any safer."
In her ruling, Judge Taylor dismisses the government’s argument
that the president "has been granted the inherent power to violate
not only the laws of the Congress but the First and Fourth
Amendments of the Constitution, itself."
"There are no hereditary Kings in America and no powers not
created by the Constitution," she wrote. "So all ‘inherent powers’
must derive from that Constitution."
After the ruling, the Justice Department issued a statement. "In
the ongoing conflict with al-Qaeda and its allies, the President
has the primary duty under the Constitution to protect the American
people," it said. "…Because the Terrorist Surveillance Program is
an essential tool for the intelligence community in the War on
Terror, the Department of Justice has appealed the District Court's
order."
Judge Taylor will next consider a request from the government
for a stay pending the Government's appeal to the Sixth Circuit
Court of Appeals. The ACLU will oppose the motion, but has agreed
to a temporary stay until the court can rule on the Government's
request. That hearing is expected to be held on September 7th.
