In 2001, following the events of 9/11, President Bush secretly authorised the National Security Agency (NSA) to conduct electronic surveillance of people within the US, without a warrant. It became public following a New York Times report last December.
Yesterday, US District Court Judge Anna Diggs Taylor ruled that the NSA programme violates Americans’ rights to free speech and privacy under the First and Fourth Amendments of the Constitution, and runs counter to the Foreign Intelligence Surveillance Act (FISA), which requires the executive branch to obtain a warrant before engaging in electronic surveillance of Americans.
Judge Taylor also rejected the Government’s argument that the case could not proceed because of state secrets, saying that facts about NSA wiretapping have already been conceded by the Government.
The American Civil Liberties Union (ACLU) brought the case against the NSA on behalf of journalists, scholars and lawyers who say that the programme is disrupting their ability to communicate effectively with sources and clients. The Bush administration argued that the programme is necessary to protect Americans.
"Today’s ruling is a landmark victory against the abuse of power that has become the hallmark of the Bush administration," said Anthony Romero, Executive Director of the ACLU. "Government spying on innocent Americans without any kind of warrant and without Congressional approval runs counter to the very foundations of our democracy."
"By holding that even the president is not above the law, the court has done its duty under our Constitution to serve as a check on executive power," added ACLU Associate Legal Director Ann Beeson, who argued the case before Judge Taylor. "Throwing out the Constitution will not make Americans any safer."
In her ruling, Judge Taylor dismisses the government’s argument that the president "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."
"There are no hereditary Kings in America and no powers not created by the Constitution," she wrote. "So all ‘inherent powers’ must derive from that Constitution."
After the ruling, the Justice Department issued a statement. "In the ongoing conflict with al-Qaeda and its allies, the President has the primary duty under the Constitution to protect the American people," it said. "…Because the Terrorist Surveillance Program is an essential tool for the intelligence community in the War on Terror, the Department of Justice has appealed the District Court's order."
Judge Taylor will next consider a request from the government for a stay pending the Government's appeal to the Sixth Circuit Court of Appeals. The ACLU will oppose the motion, but has agreed to a temporary stay until the court can rule on the Government's request. That hearing is expected to be held on September 7th.