HomeFeaturesDailyBriefingsRapidReconSpecial ReportsAbout Us

InBrief Archives

Court Rules Against Warrantless Wiretaps

A federal district court judge has ruled (full text of decision) that a National Security Agency (NSA) wiretapping program which monitors communications between terrorist suspects outside the United States and individuals inside the U.S. is both unconstitutional and in violation of the 1978 Foreign Intelligence Surveillance Act (FISA). The suit was filed by a variety of organizations and individuals, including the American Civil Liberties Union, who argued that the program violated their First Amendment right to free speech. They further contended that it violated FISA, which requires that a warrant be obtained if persons involved in the communications are “U.S. persons.” They made a similar argument regarding a NSA data-mining program. The government argued that the plaintiffs’ claims were barred by the application of the “state secrets privilege,” which requires dismissal of a case if continuance of it would require divulgence of state secrets, and further argued that the individuals in question did not have standing, meaning that they had suffered no individual compensable injury.

The Washington Post described the decision:

A federal judge in Detroit ruled yesterday that the National Security Agency’s warrantless surveillance program is unconstitutional, delivering the first decision that the Bush administration’s effort to monitor communications without court oversight runs afoul of the Bill of Rights and federal law.

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…

SCOTUS Blog has a more detailed discussion of the decision. According to this and other published reports, the court rejected the plaintiffs’ claims as to the data-mining program, but concluded that the state secrets privilege did not apply to the wiretapping program because the government had admitted to its existence and discussed it in sufficient detail for the court to rule on its constitutionality and legality. The court found that the free speech of the plaintiffs had been harmed because individuals living in the Middle East sometimes refused to speak to them over the phone for fear of being wiretapped.

If this decision is upheld, the practical implication would be that wiretaps would have to be delayed several hours for a warrant to be obtained. Fuller analysis of this decision and its implications for national security to follow.