In ruling on Thursday that the Bush administration’s warrantless surveillance program is unconstitutional and must be halted, U.S. district Judge Anna Diggs Taylor slammed the White House on several critical fronts.
For months, George W. Bush, Dick Cheney and other administration aides have been defending–even championing–what they call the “terrorist surveillance program,” under which the National Security Agency can intercept communications that involve an American citizen or resident without a warrant if one party to the communication is overseas and suspected of being linked to anti-American terrorists). They have maintained that the president has the authority as commander in chief to authorize such surveillance. Though the Foreign Intelligence Surveillance Act (FISA) generally forbids wiretapping without warrants, the White House has contended that Bush is not bound by the limitations of that law. This claim–arising from the Bush administration’s view of expansive (even supreme) presidential power–set up a constitutional clash. And in the first round of the legal battle, Judge Taylor has knocked out the White House argument.
In her decision, she accused the administration of dishonestly arguing that the lawsuit filed by the ACLU and others (including journalists, researchers and lawyers) against the NSA wiretapping should be dismissed because it would expose state secrets:
It is undisputed that Defendants have publicly admitted to the following: (1) the TSP [Terrorist Surveillance Program] exists; (2) it operates without warrants; (3) 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, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda. As the Government has on many occasions confirmed the veracity of these allegations, the state secrets privilege does not apply to this information.
Defendants assert that they cannot defend this case without the exposure of state secrets. This court disagrees. The Bush Administration has repeatedly told the general public that there is a valid basis in law for the TSP. Further, Defendants have contended that the President has the authority under the AUMF [legislation authorizing Bush to use military force against Iraq] and the Constitution to authorize the continued use of the TSP. Defendants [the Bush administration] have supported these arguments without revealing or relying on any classified information. Indeed, the court has reviewed the classified information and is of the opinion that this information is not necessary to any viable defense to the TSP….Consequently, the court finds Defendants’ argument that they cannot defend this case without the use of classified information to be disingenuous and without merit.