Warrentless Wiretapping Violates Constitution
The National Security Agency’s program to intercept without warrant or judicial approval international telephone calls and internet communications of U.S. citizens violates the U.S. Constitution, a federal district court ruled.
The judge found that the secret program–designated “TSP” in the opinion–violates the Separation of Powers doctrine, the First and Fourth Amendments of the Constitution and statutory law.
“The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he 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,” the judge wrote. “We must first note that the Office of Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all ‘inherent powers’ must derive from that Constitution.”
The challenge to the TSP was brought by a group that included attorneys, journalists and scholars. They argued that the program violated their free speech and associated rights. By the government being able to intercept calls and internet communications, the group claimed TSP interfered with their ability to carry out their professional responsibilities.
The government argued that the plaintiffs lacked standing to sue because they could prove no injury. The court rejected this argument, stating: “Defendants ignore the significant, concrete injuries which Plaintiffs continue to experience from Defendants’ illegal monitoring of their telephone conversations and email communications.”
In addition, the court said it would not deny Plaintiffs standing based on the distinctions raised by the government. The opinion states: “Although this court is persuaded that Plaintiffs have alleged sufficient injury to establish standing, it is important to note that if the court were to deny standing based on the unsubstantiated minor distinctions drawn by Defendants, the President’s actions in warrantless wiretapping, in contravention of FISA, Title III, and the First and Fourth Amendments, would be immunized from judicial scrutiny. 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. 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 the power is never ‘condense[d] . . . into a single branch of government.'”
The government sought to dismiss the case arguing the state secrets privilege. The court found the privilege was properly invoked but was irrelevant since the government already admitted publicly that TSP exists, it operates without warrants, it targets communications where one party to the communication is outside the United States and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda or affiliated with al Qaeda.
As part of its filing in the case, the government submitted to the judge in camera classified information to support its contention that it needed to use state secrets to defend itself. The court said it “has reviewed the classified information and is of the opinion that this information is not necessary to any viable defense to the TSP” and found the government’s argument “to be disingenuous and without merit.”
American Civil Liberties Union et al. v. National Security Agency et al., E.D. Michigan, No. 06-CV-10204, issued August 17, 2006.