Sunday, August 20, 2006

Warrantless wiretapping program declared unconstitutional, order stayed pending appeal

Last week, on August 17, 2006, a United States District Judge declared the Bush administration's warrantless wiretap program to be illegal and unconstitutional. The order to end the program is stayed until September, allowing the government to appeal. From the New York Times:

Federal Judge Orders End to Warrantless Wiretapping - New York Times:

WASHINGTON, Aug. 17 — A federal judge in Detroit ruled today that the Bush administration’s eavesdropping program is illegal and unconstitutional, and she ordered that it cease at once.

District Judge Anna Diggs Taylor found that President Bush exceeded his proper authority and that the eavesdropping without warrants violated the First and Fourth Amendment protections of free speech and privacy.

“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,” she wrote, in a decision that the White House and Justice Department said they would fight to overturn. A hearing will be held before Judge Taylor on Sept. 7, and her decision will not be enforced in the meantime pending the government’s appeal.

The judge’s ruling is the latest chapter in the continuing debate over the proper balance between national security and personal liberty since the attacks of Sept. 11, 2001, which inspired the eavesdropping program and other surveillance measures that the administration says are necessary and constitutional and its critics say are intrusive.

In becoming the first federal judge to declare the eavesdropping program unconstitutional, Judge Taylor rejected the administration’s assertion that to defend itself against a lawsuit would force it to divulge information that should be kept secret in the name of national security.

“Predictably, the war on terror of this administration has produced a vast number of cases, in which the states secrets privilege has been invoked,” Judge Taylor wrote. She noted that the Supreme Court has held that because the president’s power to withhold secrets is so powerful, “it is not to be lightly invoked.” She also cited a finding in an earlier case by the Court of Appeals for the District of Columbia Circuit that “whenever possible, sensitive information must be disentangled from nonsensitive information to allow for the release of the latter.”

The New York Times also has a handy-dandy guide on how the usual process operates for law enforcement to obtain a warrant under the Foreign Intelligence Surveillance Act. The Bush administration is arguing that the process is too cumbersome for the current situation and that their procedure of avoiding authorization from the Foreign Intelligence Surveillance Court is constitutionally kosher.

The US administration has come out strongly against the Court's ruling and argues that it will be successful on appeal.

Bush Predicts Appeals Court Will Lift Ban on Wiretaps - New York Times:

WASHINGTON, Aug. 18 — President Bush predicted Friday that an appeals court would ultimately overturn a decision this week declaring his warrantless wiretapping program illegal, and he said that “those who herald this decision simply do not understand the nature of the world in which we live.”

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