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8/17/2006
07:33 PM
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Court Rules NSA Telecom Surveillance Illegal

A federal judge has ruled that the NSA's electronic spying program is unconstitutional. The Bush administration immediately appealed.

A federal judge ordered all entities to stop participating in warrantless surveillance because the National Security Administration's program is unconstitutional.

In the first federal decision regarding the N.S.A.'s spying program, U.S. District Judge Anna Diggs Taylor wrote that the program violates First and Fourth Amendments by monitoring communications without warrants and interfering with the ability of journalists and scholars to do their jobs. She ordered an immediate halt to the program Thursday.

Taylor did dismiss data-mining claims, stating that those could not be proven without revealing state secrets since the government has made no public mention of data mining. However, she said the government did not persuasively argue that it could not defend itself against other claims of unauthorized surveillance without revealing state secrets or jeopardizing national security.

Though Taylor did not specifically mention telecommunications companies, she permanently enjoined the N.S.A., its employees, representatives and any other people or entities involved in the program from continuing to participate. Federal sources said the parties had agreed to block that order temporarily until a Sept. 7 hearing.

Verizon and BellSouth have denied involvement in the surveillance program. Claudia Jones, executive director of media relations for AT&T, declined to comment on the ruling, its impact on a separate lawsuit alleging that AT&T's participation in the surveillance was illegal, or on any changes in the company's practices in light of the decision.

"Our statement remains the same as it has been," Jones said during an interview Thursday. "AT&T is fully committed to protecting our customer privacy, and we don't comment on matters affecting national security."

The U.S. Department of Justice (D.O.J.) issued a statement saying it is appealing the ruling and that both parties agreed to a temporary block of Taylor's order. The federal government immediately filed a notice of its intent to appeal in Detroit.

U.S. Attorney General Alberto Gonzales and President George W. Bush also held press conferences to tout the reasons for the program and to say they disagreed with the ruling.

"In the ongoing conflict with al-Qaeda and its allies, the President has the primary duty under the Constitution to protect the American people," Gonzales said in a prepared statement. "The Constitution gives the President the full authority necessary to carry out that solemn duty, and we believe the program is lawful and protects civil liberties."

The D.O.J. said the terrorist surveillance program is an "essential tool for the intelligence community in the War on Terror" and critical for detecting and preventing attacks from al-Qaeda and its allies.

The American Civil Liberties Union joined several journalists and scholars to file the suit in February. They argued that the program interfered with their reporting because Middle Eastern contacts stopped providing information over the phone once it became apparent that the conversations were likely monitored.

Taylor said the plaintiffs had standing in the lawsuit and they had argued successfully that their First and Fourth Amendment rights were violated. She also said the executive branch had violated rules on the separation of powers and could not justify it through the Authorization for Use of Military Force or through inherent Presidential powers.

"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," Taylor wrote in her ruling. "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."

"We must always be mindful that, when the President takes official action, the Court has the authority to determine whether he has acted within the law," she continued, quoting portions of opinions from previous court decisions. "It remains one of the most vital functions of this Court to police with care the separation of the governing powers. When structure fails, liberty is always in peril."

Eugene Volokh, an expert on the First Amendment who teaches a class on free speech at University of California, Los Angeles, said he did not agree with Taylor's opinion regarding the amendments.

"I think that what the government is doing is not unconstitutional, that it doesn't violate the First Amendment and the Fourth Amendment," he said during an interview Thursday. "It may violate federal statutes. I think the argument that the executives' actions violate congressional statutes is a much stronger argument."

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