NSA wiretapping unconstitutional

Federal judge orders immediate halt to NSA's warrantless wiretapping program, ruling that it violates First and Fourth Amendments.
Written by ZDNET Editors, Contributor

Federal judge Anna Diggs Taylor ruled that the NSA wiretapping program violates the Constitution and ordered it to be stopped immediately. In a 44-page decision (PDF), the judge concluded: "Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution."

News.com reports that the Justice Department immediately signaled an appeal and requested a stay of the judge's order until the appeal is complete. The parties agreed to a stay until a Sept. 7 hearing.

A key issue in the government's argument was the "inherent powers" of the president, which at least in this decision got a solid thrashing.

The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.

We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all “inherent powers” must derive from that Constitution.

Citing the Hamdi decision, Judge Taylor wrote "We have seen in Hamdi that the Fifth Amendment of the United States Constitution is fully applicable to the Executive branch’s actions and therefore it can only follow that the First and Fourth Amendments must be applicable as well.51 In the Youngstown case the same “inherent powers” argument was raised and the Court noted that the President had been created Commander in Chief of only the military, and not of all the people, even in time of war."

The ACLU, which brought the suit, praised the decision, reported the New York Times:

“It’s another nail in the coffin of executive unilateralism,” said Jameel Jaffer, a lawyer for the plaintiffs with the A.C.L.U. And Anthony Romero, executive director of the A.C.L.U., said Judge Taylor’s ruling “confirms that the government has been acting illegally, in contravention of the Foreign Intelligence Surveillance Act and the Fourth Amendment.’’

In Congress, politicians lined up on party lines to praise and attack the decision.

Editorial standards