Warrantless Spying Illegal

A U.S. District Court Judge in Detroit has ruled that the warrantless wiretapping program which President Bush admits has been in place since 2002 is illegal, as a violation of the Administrative Procedures Act, the Separation of Powers doctrine, the First Amendment, the Fourth Amendment, and the Foreign Intelligence Surveilance Act (FISA) interpreted in light of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, the first law to ban wiretapping without a warrant.

A permanent injunction ordering the program shut down has been entered.

A number of government arguments were rejected.

(1) A government effort to invoke the "state secrets" privilege was rejected because President Bush and other senior officials had publicly admitted enough to make clear that the program existed and that it is in violation of the law. A related state secrets claim was rejected because the claims were not brought by people engaged in espionage for the United States themselves.

(2) A government claim that the Plaintiffs were improper people to bring the suit because they lacked standing was rejected because the scholars, journalists and lawyers involved could identify concrete instances where the program prevented them from discussion of matters with people in the Middle East via phone and e-mail in the furtherance of their legitimate professional duties.

(3) A government claim that the Authorization For Use of Military Force (AUMF), which authorized the war in Afhganistan, was rejected because FISA expressly provides for situations when there is a declaration of war and provides for only a 15 day exemption in that situation. This intepretation was informed by the U.S. Supreme Court's ruling in Hamdi.

(4) A government claim that the end of the program would make foreign intelligence impossible for practical purposes was rejected because the judge noted numerous very flexible procedures in FISA designed to address that concern.

There is no doubt that the government will appeal the ruling and seek a stay of the injunction.