In breaking news overnight, a federal judge in Detroit has ruled that the Bush administration’s program of covert wiretapping of American citizens, one of the most controversial elements of the “war on terror”, is illegal and unconstitutional.

District judge Anna Diggs Taylor, a Democrat appointee, “rejected the administration’s assertion that to defend itself against a lawsuit would force it to divulge information that should be kept secret in the name of national security”:

It was never the intent of the Framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights

The lawsuit was brought by the American Civil Liberties Union after the media revealed the existence of the program last December. At the time, most legal experts were at a loss to say how its legality could possibly defended. Wiretaps are authorised under the Foreign Intelligence Surveillance Act, but the administration seemed to have deliberately gone outside its provisions – although apparently only four applications for FISA warrants have ever been turned down.

The decision, however, does not mean the end of the program. Enforcement of Judge Taylor’s ruling will be suspended until another hearing on 7 September, and from there the appeals process is likely to keep it in abeyance until the case, or others on the same topic, reaches the Supreme Court.

Nonetheless, it is interesting that the Republicans’ comments on the case so far seem to focus on the necessity of the wiretapping, not its legality. Attorney-general Alberto Gonzales said “we will continue to utilise the program to ensure that America is safer”, while House speaker Dennis Hastert said “America cannot stop terrorists while wearing blinders”.

Democrat senator Russell Feingold, however, went to the heart of the issue: “The president must return to the Constitution and follow the statutes passed by Congress. We all want our government to monitor suspected terrorists, but there is no reason for it to break the law to do so.”

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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