A federal judge has ruled that the NSA's electronic spying program is unconstitutional. The Bush administration immediately appealed.
Volokh said he believes the government will have a difficult time explaining why it did not comply with the Foreign Intelligence Surveillance Act (FISA), which allows the secret court to issue warrants for surveillance. However, he said he does believe the government has a right to monitor information that crosses U.S. borders, just as it has a right to inspect people and packages coming into the country.
He and other lawyers said that if the appellate court upholds Taylor's decision, the case is likely to go to the U.S. Supreme Court.
When the wiretapping program was first revealed by The New York Times, Gonzales and Deputy Director for National Intelligence, General Michael Hayden, said they needed more agility and speed than FISA allows.
The day of Taylor's ruling, the White House issued a statement saying that an alleged international terror plot that resulted in the arrests of Britons and Pakistanis, who authorities said were plotting to bomb trans-Atlantic flights, serves as a "stark reminder" that terrorists want to kill Americans.
"United States intelligence officials have confirmed that the program has helped stop terrorist attacks and saved American lives," the White House statement said. "The program is carefully administered, and only targets international phone calls coming into or out of the United States where one of the parties on the call is a suspected Al Qaeda or affiliated terrorist. The whole point is to detect and prevent terrorist attacks before they can be carried out. That's what the American people expect from their government, and it is the President's most solemn duty to ensure their protection. The Terrorist Surveillance Program is firmly grounded in law and regularly reviewed to make sure steps are taken to protect civil liberties."
David Sobel, senior counsel for the Electronic Frontier Foundation, which has joined journalists and others in the lawsuit over AT&T's participation in the case, said the program violates civil liberties and Taylor's decision is a step in the right direction.
"It's certainly a very positive development in terms of E.F.F.'s case and, by extension, the rights of telecommunications users," he said during an interview. "This removes the smoke and mirrors that the administration has attempted to erect to obscure the fact that this activity is clearly unconstitutional. For that reason, this is a very significant victory for citizen privacy."
It was not immediately clear how the ruling would come to bear on related lawsuits, but Sobel had a few ideas.
"There is a very obscure provision in the federal wiretap law that says if the provider is given certification from the Attorney General, no warrant is required for surveillance," he said. "The significance of the decision in Detroit is that, if the courts uphold that the surveillance program is unconstitutional, there's an argument that any certification from the Attorney General is invalid. We might learn, through E.F.F.'s litigation, whether it is enough for the provider to say they had certification and they weren't required to ask questions about it."
Sobel said that telecommunications lawyers should have questioned warrantless requests because they were unprecedented.
He also said Thursday's decision should kill a bill introduced by Sen. Arlen Specter, a Pennsylvania Republican. The bill, labeled a compromise, suggested that the lawsuits regarding the once secret surveillance program move to a closed court.
"I think events have now passed over that proposal," he said. "We now have two courts -- the court in Detroit today and the court in San Francisco two weeks ago -- that have delved very deeply into these cases. The suggestion that they should be moved to the FISA court would be seen for what they are, which is a government attempt to change the rules now that they see that they are losing. To say that the cases should be uprooted and started over in FISA court would seem like nothing more than a government attempt to erase these decisions and start over."
5 Top Federal Initiatives For 2015As InformationWeek Government readers were busy firming up their fiscal year 2015 budgets, we asked them to rate more than 30 IT initiatives in terms of importance and current leadership focus. No surprise, among more than 30 options, security is No. 1. After that, things get less predictable.
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