Thought Theater

Judge Orders Halt To NSA Domestic Surveilance genre: Just Jihad & Polispeak & Six Degrees of Speculation

A federal judge has ordered an immediate halt to the Bush administration's NSA domestic surveillance program they many have argued is illegal due to its failure to use the established FISA court procedure. Republican leaders are calling for efforts to establish legislation that would enable the administration to conduct the "necessary" surveillance. Read the full article here.

DETROIT - 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.

“Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution," Taylor wrote in her 43-page opinion.

“By holding that even the president is not above the law, the court has done its duty," said Ann Beeson, the ACLU’s associate legal director and the lead attorney for the plaintiffs.

Thought Theater has previously commented that this NSA program here and here, and here. This program seems to be typical of the Bush administration procedure of acting first, explaining later, and eventually attempting to rewrite the rules in order to accommodate the behavior. Despite all the blustering at the point that the program was exposed, little has happened to resolve the question of legality.

The President has asserted that the program is legal by virtue of his charge to protect the country under the Constitution...an argument that seems to be in conflict with the existing facts in law. The FISA court has been defined legislatively to be the means and the process by which such surveillance can be conducted. If the President had such powers under the Constitution there would have been no further need to authorize such activities through the legislative process.

When the program was exposed, a number of politicians, including Republican Arlen Specter, indicated that the program was illegal. Once the hearings were held, it seemed apparent that the GOP intended to minimize the issue and it appeared that they intended to rewrite the law in order to protect those who could be held accountable for the program. Most recently, Specter announced that there was an agreement in place whereby the administration would submit the program to the FISA court for review...however, that submittal was to be voluntary and the bill would also provide reform measures to allow similar activities under the newly established guidelines.

It will be interesting to see how both Parties’ handle the latest ruling and the subsequent maneuvering that is certain to commence to incorporate the issue into the midterm election campaigns. As the GOP expands its efforts to portray the Democrats as weak on security and the war on terror, there is little doubt they will argue that it is essential to give the President the tools necessary to protect America. The Democrats will have to determine if they will consent to expanded executive authority and risk being seen to limit the civil liberties and privacy rights of U.S. citizens.