Judge Rules NSA Wiretapping Unconstitutional

strredwolf writes "CNN is reporting that NSA's warrantless wiretapping program has been ruled unconstitutional. This is the ACLU lawsuit on behalf of journalists, scholars, and lawyers. From the article: "U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency's program, which she says violates the rights to free speech and privacy.""

So What?

[bbernard]

Not to seem too pessimistic here, but exactly what kind of enforcement is going to happen here? Is the judge going to order Bush arrested if they don't stop? Will the judge impound NSA's computers? Sure, it's a step in the right direction, but it seems much more symbolic to me that actually useful.

The most important question

[Anonymous Coward]

Does it mean that any arrests and prosecutions made as a result of information gained from these wire-tappings are deemed unconstitutional and their respective cases dropped and verdicts overturned? What happens to the people whos freedoms were violated by this unconstitutional act? .. sorry that's more than one question

-Sj53

Accountability

[Anonymous Coward]

Ok, so it's unconstitutional... now what? Who's going to be held accountable?

Good compilers know enough to optimize out a test if nothing will be done as a result of that test. Seems to me that the U.S. courts could've gone the same route and just skipped the trial.

Re:Trust us! We're the government!

[fohat]

The current administration will never admit mistakes such as these. You are absolutely correct about the warrents.

Ever since I heard about the wiretapping issues, when I talk to my friend over my cell phone, I sometimes say hi to the NSA just for fun. They never respond though...

I am so glad to hear about this decision! I hope that the message has been sent now: We will not tolerate being spied upon for no apparent reason.

Divisive Issues

[MandoSKippy]

I was listening to a local radio talk show when this issue came up. The host, a right-leaning Bush mouthpiece used the if you are against this program, then you are pro-terrorist. I actually called in and explained to him about the FISA court, and how it is retroactive, and most people (including myself and those I have spoken to) don't have a beef with the program itself, but more so the warrantless methodology used by the administration. The talk show host, quick on the reponse as most of them are Asked "So you would have activist judges like the judges who ruled that goverments can take your land and give it to corporations making the decision on whether you are wiretapped?" He was basically using a tactic that many policial folks, use another unrealted issue to hide the issues with the one we are talking about. Well, I responded quietly and firmly that he was using an unrelated case, AND in that case the Supreme Court did not rule it that goverment can take your land and give it to companies, but instead ruled that nowhere in the constitution does it state that people are protected from this, and as long as the process is lawful (which in Conneticut at the time it was) it wasn't the Supreme Court's decision to make. This is a correct judgement, and has lead to many newly passed state laws protecting citizens from this behavior. His response was "What are you a lawyer or something?" to which I replied, no just an informed citizen. My point? I am sick an tired of divisive issues like this being hidden in the terrorism crap... you are any NSA wire tapping, you are pro terrorism... that's BS. We just want security WITH protections of our rights. Some actually informed news people who could communicate the issues instead of getting all hot button on the issues wouldn't hurt as well.

Re:*Jaw drops*

[Athenais]

I had the same reaction. Frankly, it scares me a little bit that we've reached the point where I'm *surprised* a judge was able to make the right decision. A part of me was expecting to see nothing whatsoever come of this lawsuit.

Now let's see if the government that ignores the constitution and rule of law will ignore the ruling of a judge as well.

I wonder if ...

[WindBourne]

W. had not pushed the patriot act, if the judge would still have ruled the same way. One part of the act was to allow (in fact, insists on it), that data moves from NSA/CIA to the DOJ/DHS that was collected while in the persuit of terrorists. Had that not been there, and had the NSA been operating the same as always (all data is kept to self except for chasing a real terrorists), I suspect that she would have had less reason to rule this.

Which Congressman?

[michaelmalak]

Which Congressman will have the courage to introduce articles of impeachment?

Note: Conyers backed down [washingtonpost.com] this past May.

From the conservative bench

[Van Cutter Romney]

I'm dying to hear what the conservative side (FOX News) has to say about this. I want the see the look on Bill O'Reilly now and how he's going to slander the ACLU and The New York Times on the next Factor show.

Of course, you do realize that if NSA contests this judgement in the U.S. Supreme Court, Mr. Bush has his men there.

Re:Trust us! We're the government!

[gfxguy]

While I agree with the judges ruling, and agree that our rights are more important than our security (my argument is that people died to ensure our rights, and I thank them for it; I'm not willing to give them up for potential security).

However, I've always disagreed with this argument. I use the Mafia example. Let's say the government DOES get a grant to tap a criminal's phone line. Then YOU call him... now YOUR call is being tapped because of who you called. That's the way it works. Otherwise the government has to have permission to tap both parties phones. That's ridiculous.

From what I understand, in this case, the government got international phone numbers that were stored in cell phones they found in Al Qaeda hideouts in Afghanistan. These are the numbers they were tapping (on the U.S. side, so calls out to and in from these numbers were tapped). If that's the case, I have no problem with it...

Except that they could have gotten warrants and avoided a lot of problems.

Also, the phrase "Domestic Wiretap", in this case, is a blatant mischaracterization of what was being done. The score, in my opinion, is zero-zero...

The administration shouldn't have done it without the easily obtained warrants...
But the media made a much bigger story out of it and mischaracterized what exactly was happening.

They're all a bunch of %$@%$@#@'s.

Wait till Jr. pulls an Andrew Jackson

[Lead Butthead]

"U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency's program, which she says violates the rights to free speech and privacy."

I am concerned that Jr. would pull an Andrew Jackson and DARE the court to enforce its ruling.

Re:Trust us! We're the government!

[suggsjc]

Not going to state my position, but I would imagine you could get a poll to go either way just by the wording.
For instance, if you asked if you supported "Bush's warrantless, unregulated wiretapping program" then you would probably get less than 50% approval.
However, if you asked if you supported "Anonymous wiretapping to promote US Security" then you would probably get more than 50% approval.

So there are two morals to this story. First, every one has an opinion. Including the survey makers. They can (and in most cases will) skew the questions to achieve the results they really want. Second, statistics are just statistics. Even if 0 or 100% of a poll/survey/whatever said one thing, you should still make up your own mind and vote accordingly.

Again, not going to pick a side, but it should be assumed that the gov't is going to appeal. As with the scenario above, people have different opinions. I'm not saying it was that judges personal agenda to shoot this down, but if it were then there is just as good a chance that the next hearing will have someone with a different view and the ruling will be overturned.

Re:So What?

[internic]

Not to seem too pessimistic here, but exactly what kind of enforcement is going to happen here? Is the judge going to order Bush arrested if they don't stop? Will the judge impound NSA's computers? Sure, it's a step in the right direction, but it seems much more symbolic to me that actually useful.

Look, I think Bush is a huge jerk and an incompetent leader, but I do expect that we will obey a court decision. His administration has become extremely "creative" in their interpretation of the law, I admit, but in the end this will come down to a decision by the SCOTUS on interpreting the constitution. I don't think there's much evidence to suggest that they would dispute that ability of the SCOTUS. Moreover, even the gutless yes men that surround Bush would, no doubt, inform him that not abiding by the SCOTUS decision would fundamentally undermine the rule of law, destabilize our government, and do great damage to the country. That's something that Bush does not want, no matter who bad a president he may be.

So, if the supreme court rules against them, the Bush administration will abide by the decision, or at least some creatively interpreted version of it. Perhaps more likely is that they'll do as they did in the Jose Padilla case and have a sudden change of heart at the last minute if they believe the decision will not go their way, hope to avoid having the decision actually made against them. I don't know if that would work here.

Re:So What?

[Mattintosh]

What if the president goes on a criminal rampage in plain sight? If he robbed a bank and took a few hostages, would the Secret Service jump in front of a SWAT sniper's bullet to save him? Would he get away without punishment? Somehow I doubt it.

Now for the next question: What if the president goes on a criminal rampage out of sight? What if he wipes his ass with the constitution? What if he destroys the few remaining shreds of democracy left in the current system? Would he get away without punishment? I'll leave the answer up to you.

Re:Trust us! We're the government!

[herbiesdad]

Again, the law degree comes in handy. I think you misunderstood the government argument. The President has express constitutional powers allowing him to handle foreign matters and matters of national security. This power has been construed broadly, and there's quite a lot of caselaw giving the President some latitute in this area--in support of the express constitutional power. The monitoring of foreign calls coming to the USA is arguably well within the sweet spot of these powers. The government argument regarding state secrets should not be sluffed off too quickly either. A federal judge is not necessarily cleared to hear all state secrets just because of her position. There's also no indication this was a secure courtroom or otherwise closed to spectators. There really is some merit to a government's/military's having secrets. It's also not a coincidence where this suit was filed; it's a clear case of forum shopping. I read the entire opinion and I suspect the 6th Circuit Court of Appeals will reverse or refine this ruling. Also, from what I've read previously on /., the way NSA "wiretapping" (I think it's a really poor word choice for this activity) occurrs in this context is by very rapidly scanning segments of conversations for voice recognition and other forms of identification ON THE FLY. And herein lies the problem. If the NSA monitors calls in realtime, there is no time to get warrants before the calls are completed. They may be able to get anticipatory warrants on US numbers, but I'm not sure they could get open warrants for calls coming in from a region of Pakistan where they don't know in advance the US recipient. It's actually a VERY difficult legal and organizational problem. By the way, I haven't heard of any identifiable, individual Ammerican who was subject to this wiretapping.

Re:So What?

[Rotten168]

I'd say that's untested constitutional matter, but normally the president gets impeached and then tried in Congress for any and all crimes. You cannot "arrest" the President, as he is the leader of the executive branch and that would give mid-level bureaucrats quite a lot of power.

Actually...

[ukemike]

Recently the Supreme Court has made several rulings about prisoner detention in guantanamo and torture that firmly establish that the administration violated the War Crimes Act and the Geneva Conventions. These offences would easily rise to the level of a "high crime" and are impeachable.
The congress unfortunately is utterly corrupt and has failed for 6 years to meet it's oversight responsibilities. There is zero chance that the current congress will impeach. Vote and pray for the Democrats in 2006. Then there will be a small but real chance that the Criminal in Chief will be held accountable for his may crimes.

"...the rights to free speech and privacy."

[NotQuiteReal]

Judge Taylor says ...violates the rights to free speech and privacy

Searching the consitution... [usconstitution.net]

Free Speech - Check.
Privacy... searching... hmmm.

<tinfoil_hat> Just wait - when a supreme court rules you don't have privacy, what other famous cases based on privacy will fall? </tinfoil_hat>

BTW - here is a reasoned argument on why there is such a right [harrybrowne.org].

Re:*Jaw drops*

[Alaska Jack]

"I can almost guarantee that the SCOTUS will also declare it unconstitutional."

And, buried way down here in the comments where the /. crowd will ever see it, I can almost guarantee they won't.

See, here's the thing. The program almost certainly isn't unconstitutional. Yes, the judge has ruled it so, but she produced almost literally no analysis to support that conclusion. She deals with the administration's 4th amendment exceptions arguments by -- almost completely ignoring them. The opinion is, after one day, already taking a drubbing by scholars on both sides of the political spectrum.

Now, here's the other thing: There is a very good chance SCOTUS might find the program *illegal*. But that's not the same thing as unconstitutional. Lots of things are illegal that aren't prohibited by the constitution.

In other words, about 90 percent of this entire /. thread -- including the high-moderated posts -- is being generated by kids who have absolutely no idea what they're talking about.

    - Alaska Jack

Re:It goes back...

[MarkusQ]

Please don't accuse me of ethical relitivism when you are apologizing for warrantless searches.

Hello? You're the one peddling the "everybody does it" line. I'm the one saying that what Bush did was a crime, illegal, wrong, and he should be impeached for it (see, for example, the link in my my sig.)

Where in the heck do you get off saying that I'm apologizing for Bush's conduct, or for Clinton's? And, for that matter, why is it that you focused on the phrase "ethical relativism", made a baseless accusation in return, but managed to totally ignore the point of my post which is that your "everybody does it" talking point is factually incorrect, in that it conflates two very different things as if they were the same?

President Coolidge fed his cat at the table, the first President Bush vomited into the lap of the Prime Minister of Japan, and the present President Bush talks with his mouth full of food. If some future President kills a dinner guest (which, unlike the other items, is illegal, even when the president does it), would you trot out some sort of "Presidents have always had atrocious table manners" line?

--MarkusQ

Even better!

[raehl]

Wouldn't it be wonderful if we could turn back the clock 10 years and have our greatest concern about the President be, quite legitimately, that he once lied in court about whether he had sex with an intern.

Wouldn't it be wonderful if we could turn back the clock 10 years and have our greatest concern about the President be, quite legitimately, that he once lied in a deposition for a civil case?

The difference between Bill Clinton and George Bush is Bill Clinton thought he had to break the law to cover his ass. George Bush doesn't think the law applies to him in the first place.

Re:Impeachment

[BalanceOfJudgement]

Even so, the U.S. Constitution says nothing about the treatment of foreign nationals or enemy combatants. The protections in the Constitution only extend to legal residents of the country.

I admire the rest of your post, though I wanted to draw attention to this statement..

Take a look at the Bill of Rights (which contains the clauses used to find this program unconstitutional) and tell me which one contains the words "resident" or "citizen."

Funny... none of them do. Our founders held those rights to be inalienable - self evident - for all humans. They didn't want our government to be allowed to violate anyone's rights, including people who aren't Americans.

I realize our current legal establishment doesn't look at the issue that way, but they ought to. Those are human rights, not American Citizen's rights.

Storm the Castle and Arrest the King and His Men!

[Bushido Hacks]

I am certainly no liberal political troll, considering I am a red-state moderate conservative, but considering the decision made by Judge Anna Diggs Taylor, and the request that have been made to order the end the program immediately, Attorney General Alberto Gonzales is defying [yahoo.com] the orders made by Judge Taylor.

According to this statement

"We're going to do everything we can do in the courts to allow this program to continue," Attorney General Alberto Gonzales said at a news conference in Washington.

This means that "Senior Gonzales" is going to get the President, who authorhized this UNCONSTITUTIONAL program, to continute the program against the judges ruling.

I would be reasonable enought to arrest the President of the United States for treason against his own country.

Hopefully, the Judge thought of the possiblity that Gonzales would go to the President and has a plan to stop the the program from continuing.

Gonzales and Bush are more concerned about protecting that small group of rich men in Washington. Why would $60 Million that is suppose to be used by DHS's science and technology division be used to hire extra security guards at a building owned by the Treasury Department?

NEVER sacrifice true freedom for false security!

Re:I'm glad this isn't my job..

[Internet Ronin]

Ugh, you're missing the point.

There is a very real, very effective way to accomplish this without circumventing U.S. laws.

Step 1: Find people that you want to wiretap (internationally if that's what you need)
Step 2: Obtain a WARRANT from a closed court which has its records sealed.
Step 3: ????
Step 4: Stop terrorists.

The only action missing from much of the presidential wiretapping programs is not that they wiretap, but rather they do it without ANY checks and balances. If you'll recall from your high school civics class, checks and balances are part of the strength of our government. Ideally, no one portion can be given undue influence over our entire government. In instances such as this, the courts are not just thrown in there, willy-nilly, just because. They are meant to be put in place as a bulwark to prevent someone from, I don't know, say, going around an wiretapping people without any necessary rhyme or reason.

Does President Bush have reason to wiretap the people he is? Probably. And it's probably effective at doing things that help unearth and stop terrorist cells. I hope so. You can't have reason alone though. People often only behave in ways the think is reasonable, even if it means plowing airplanes into buildings. You can't have an executive that gets to operate by REASON alone. He needs justification, and accountability. Warrants provide that.

So to summarize, you can wiretap whoever the hell you want, but please, pretty please get a warrant first.