Homeland Security Watch

News and analysis of critical issues in homeland security

August 17, 2006

Judge rules NSA surveillance program unconstitutional

Filed under: Intelligence and Info-Sharing,Legal Issues — by Christian Beckner on August 17, 2006

Breaking news this afternoon:

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 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.

Obviously this is only the start of the legal process on this question; I would expect this issue to go all the way to the Supreme Court, even if Congress authorizes the program. You can read the opinion here. And Memeorandum captures the blog reaction this afternoon.

Update 1 (8/17): I just read the opinion. One interesting implication is that even though the government presented additional classified details about the program to the judge, these details did not convince her that the Terrorist Surveillance Program was greater in scope than what is already publicly-known, with the possible exception of the case’s data mining claim, which she did throw out based on the invocation of the state secret privilege. Instead, she says that the key elements of the program are publicly known, in her denial of the request to dismiss based on the state secret privilege:

It is undisputed that the Defendants have publicly admitted to the following: (1) the TSP exists; (2) it operates without warrants; (3) it targets communications where one party to the communication is outside the United States, and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda. As the Government has on many occasions confirmed the veracity of these allegations, the state secret privilege does not apply to this information.

Update 2 (8/17): Cogent detailed analysis of the opinion from Glenn Greenwald.

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