Judge Rules NSA Wiretap Program Unconstitutional

Whew! That's refreshing! And, of course, here's the immediate and unsurprising White House response:

White House press secretary Tony Snow said the Bush administration "couldn't disagree more with this ruling."

AP reports from Detroit where the ACLU "filed the lawsuit on behalf of journalists, scholars and lawyers who say the program has made it difficult for them to do their jobs".

A federal judge ruled Thursday that the government's warrantless wiretapping program is unconstitutional and ordered an immediate halt to it.

U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency's program, which she says violates the rights to free speech and privacy.

Excerpts from the Judge Anna Diggs Taylor's decision are delicious:

From page 23-24:

...it is important to note that if the court were to deny standing based on the unsubstantiated minor distinctions drawn by Defendants, the President's actions in warrantless wiretapping, in contravention of FISA, Title II, and the First and Fourth amendments, would be immunized from judicial scrutiny. 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. The three separate branches of government were developed as a check and balance for one another. It is within the court's duty to ensure that power is never condensed into a single branch of government." [my emphasis]

From Page 33:

"The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth [Amendment] in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well."

From page 40:

"The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he 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.

We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no power not created by the Constitution. So all "inherent power" must derive from that Constitution." [h/t and emphasis from Paul Kiel]

Glenn Greenwald opines:

Thus, judicial decisions are starting to emerge which come close to branding the conduct of Bush officials as criminal. FISA is a criminal law. The administration has been violating that law on purpose, with no good excuse. Government officials who violate the criminal law deserve to be -- and are required to be -- held accountable just like any other citizens who violate the law. That is a basic, and critically important, principle in our system of government. These are not abstract legalistic questions being decided. They amount to rulings that our highest government officials have been systematically breaking the law -- criminal laws -- in numerous ways. And no country which lives under the rule of law can allow that to happen with impunity.

And again here:

Let's resoundingly clear up two widely disseminated misconceptions, the first of which is being quite deliberately tossed around:

(1) Even with this Order, the Bush administration is free to continue to do all the eavesdropping on terrorists they want to do. They just have to do so with approval of the FISA court -- just like all administrations have done since 1978, just as the law requires, and just as they did when eavesdropping as part of the surveillance they undertook on the U.K. terror plot.

(2) The court's ruling that warrantless eavesdropping violates the Fourth and First Amendments clearly means (although the decision is far from a model of clarity) that Congress cannot authorize warrantless eavesdropping with legislation, which would preclude enforcement of the Specter bill.

Christy at FDL says:

A federal district court judge in Detroit has issued an injunction, halting the NSA domestic spying program unless and until the Bush Administration follows the nation’s laws and obtains FISA warrants as every other Administration has done since the 1970s, and calling this end-run of the nation’s laws unconstitutional in very straightforward language.