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Setback for NSA wiretapping plan

By Nicole Colson | August 25, 2006 | Page 2

"THERE ARE no hereditary Kings in America and no powers not created by the Constitution." That statement was part of a slap to the Bush administration's program of warrant-less wiretapping handed down in mid-August by U.S. District Court Judge Anna Diggs Taylor.

In her ruling, Taylor found in favor of the American Civil Liberties Union, which had challenged the National Security Agency's (NSA) policy of eavesdropping on the international communications of some U.S. citizens without a warrant.

The judge found that the program violated both the Fourth Amendment and a 1978 law that requires warrants to be obtained from a Foreign Intelligence Surveillance Act (FISA) court--a secret court for intelligence wiretaps involving people in the U.S. Taylor also rejected the Bush administration's claims that the president's Constitutional authority allowed the program, or that it was allowed under a 2001 congressional law.

But the judge went further, saying that the wiretapping violates the First Amendment as well, because it may have prevented people who feared they could be monitored from speaking freely. "It was never the intent of the framers to give the president such unfettered control, particularly when his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights," she wrote. "The three separate branches of government were developed as a check and balance for one another."

"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, in a statement. "Government spying on innocent Americans without any kind of warrant and without Congressional approval runs counter to the very foundations of our democracy."

Most legal analysts immediately called Diggs Taylor's ruling an "overreach," saying that she should have stopped at ruling that the administration was required to go through the traditional channel of obtaining a warrant through the FISA court.

But that would do little to hamper government spying. The FISA court is known for approving virtually all requests for wiretapping that it receives--and almost always keeps its rulings secret.

White House spokesman Tony Snow told reporters, "The terrorist surveillance program is firmly grounded in law and regularly reviewed to make sure steps are taken to protect civil liberties."

But as the ACLU has pointed out, not only has Bush personally blocked a Justice Department investigation of the warrantless wiretapping program, but several bills pending in Congress would change the law in Bush's favor. Legislation proposed by Sen. Arlen Specter (R-Pa.) for example, would allow challenges to the wiretapping program to be heard only in a secret court, while giving Bush even greater legal authority to conduct such operations.

No wonder, then, that the Bush administration said it plans to ask Taylor to stay her order--and allow the government to continue its illegal spying while it appeals.

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