U.S. District Judge Anna Diggs Taylor of Detroit has ruled that the Bush Administration’s warrantless wiretapping program — uncovered by a media investigation some eight months ago — is unconstitutional. Civil libertarians are hailing the decision as a major victory.
The suit, brought by the American Civil Liberties Union and other advocacy groups, claimed that the program violated the First and Fourth Amendments.
Taylor agreed, noting in her decision that “there are no hereditary kings in America, and no powers not created by the Constitution.
“It was never the intent of the framers to give the president such unfettered control,” she continued, “particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights.”
The Justice Department is appealing the decision to the U.S. 6th Circuit Court of Appeals in Cincinnati. Meanwhile, the surveillance program will continue, pending that court’s decision.
Will Victory Last?
At face value, the decision is a huge victory for the plaintiffs. “It can’t be understated,” said Laurence Pulgram, an attorney with Fenwick & West in San Francisco. He is currently working on a related case for the ACLU, challenging the telecom companies that participated in the program.
“It means that since the Constitution says you need a warrant in these situations, then you really do need to get one,” he told TechNewsWorld. “And when Congress says you have 15 days to get a warrant, then you really have only 15 days.”
However, other attorneys contacted for this report warned that the plaintiffs in this case — and their counterparts in trials pending against the program — have a steep road ahead. If the 6th Circuit Court upholds the decision, which is by no means a certainty, then the case will surely go to the Supreme Court.
One matter the appellate courts will likely consider is whether the plaintiffs have sufficient standing to bring the case, noted Chip Babcock, a partner with Jackson Walker in Houston and Dallas and a specialist in First Amendment issues.
“The vulnerable part of this decision,” Babcock told TechNewsWorld, “is the court’s opinion that private individuals have the right to challenge the administration.”
In addition to the issue of standing, the courts will likely look at whether the state secrets doctrine hampered the government from rebuffing plaintiffs’ claims that they were injured by the program.
“It is this interplay between standing and state secrets that is going to be a prime consideration in the appeals process,” he said. “So far, the plaintiffs have been able to pull this off, but I have my doubts that the Sixth Circuit or the Supreme Court will agree.”
The wild card in these developments is what Congress will do. A pending proposal to significantly expand the President’s powers would relieve the Bush Administration of its current quandary, said Peter Shane, a law professor at Ohio State University’s Moritz School of Law, who is an expert on federal surveillance issues.
“Congress has enacted a system — the 1978 Foreign Intelligence Surveillance Act (FISA) — that the courts have agreed is constitutional,” he told TechNewsWorld. “Now Congress is being asked to change that statute and give the president more power. But there is always the possibility that they could give the president too much power, violating the First and Fourth Amendments.”
If that were to occur, he said, it would be very difficult to challenge it in court, because specific facts about the program would be protected as state secrets.
Opponents of warrantless wiretapping argue that FISA gives the executive branch wide discretion. “Justice hasn’t been specific about the problems they have with FISA,” Shane said. “We can only speculate.”
One theory, he said, is that the government has been using data mining technology to study conversational patterns in phone calls involving individuals located overseas. When a suspicious phone call is identified, then the government requests a subpoena to wiretap that individual’s line.
“My guess is that the government is afraid this system would not be allowed by the courts. Otherwise, FISA gives the executive branch so much flexibility, it is hard to say why they would avoid it.”
Congress could, of course, opt to increase the checks and balances. There is currently a proposal in the works that would permit Congress to create standing for plaintiffs.
“If the courts find that the plaintiffs don’t have the necessary standing to challenge the administration,” Babcock said, “Congress can write a law giving them standing.”