This is practically ancient news, in Internet terms, but I wanted to make a comment here on the latest ruling on Bush’s secret NSA wiretap program. I haven’t read the ruling yet, so I’m a bit surprised by what I’ve seen of it so far. The ruling in short is that the wiretap program is unconstitutional *and* is illegal under the 1978 FISA act (see also Wikipedia’s entry for a more understandable guide to FISA).
U.S. District Judge Anna Diggs Taylor ordered a halt to the wiretap program, secretly authorized by President Bush in 2001, but both sides in the lawsuit agreed to delay that action until a Sept. 7 hearing. Legal scholars said Taylor’s decision is likely to receive heavy scrutiny from the U.S. Court of Appeals for the 6th Circuit when the Justice Department appeals, and some criticized her ruling as poorly reasoned.
Ruling in a lawsuit brought by the American Civil Liberties Union and other advocacy groups in the Eastern District of Michigan, Taylor said that the NSA wiretapping program, aimed at communications by potential terrorists, violates privacy and free speech rights and the constitutional separation of powers among the three branches of government. She also found that the wiretaps violate the Foreign Intelligence Surveillance Act, the 1978 law instituted to provide judicial oversight of clandestine surveillance within the United States.
Now I have mentioned before that I thought the wiretap program was illegal. I feel implementing is is an impeachable offense worse than President Clinton’s perjury in the Monica Lewinski scandal.Ã‚Â My reasoning was built wholly on my understanding and reading of the 1978 Foreign Intelligence Surveillance Act. The law was put in to effect largely to deal with Nixon’s illegal wiretaps, and clearly restricts the President’s powers for ordering wiretaps. However, it also gives great lee-way in how the President can legally perform a wiretap and get permission after the fact. There is a specific allowance for obtaining court-authorization up to 72 hours after the initiation of the wiretap in cases where obtaining authorization before hand is implausible (such as when the specifics of where and where the taps are needed are unknown, which is likely in the cases for which President Bush apparently created the secret NSA wiretap program).Ã‚Â So I agree with the judge on ruling it illegal based on FISA.
What I don’t quite get is ruling it unconstitutional.Ã‚Â I can read the words above and see this ruling is based on privacy and free speech concerns.Ã‚Â But it still doesn’t make a lot of sense to me, and I guess I’ll have to read more about the case, read the ruling, and see some of the discussion as covered by the EFF.Ã‚Â Regardless of what I understand of the ruling so more, I feel with this comment:
“Regardless of what your position is on the merits of the issue, there’s no question that it’s a poorly reasoned decision,” said Bobby Chesney, a national security law specialist at Wake Forest University who takes a moderate stance on the legal debate over the NSA program. “The opinion kind of reads like an outline of possible grounds to strike down the program, without analysis to fill it in.”
And as covered elsewhere in the article, both sides have agreed not to enforce the injunction until later this year when the case can be evaluated by a higher court.Ã‚Â I’ll read more about this and try to get more intelligent commentary out on it.Ã‚Â In the meantime, can anyone who has read more about this post some more information that’s a little more readable than a typical court case?Ã‚Â I’ve heard how the Constitutionality ruling is likely to be overturned, but I don’t know yet what the deal is with the FISA ruling.
[tags]NSA secret wiretapping program, President Bush’s secret wiretap program[/tags]