Judge Rules Against NSA Wiretapping

"This is a challenge to the legality of a secret program undisputedly inaugurated by the NSA at least by 2002 and continuing today, which intercepts without benefit of warrant or other judicial approval, prior or subsequent, the international telephone and Internet communications of numerous persons and organizations within this country," she wrote. "The [wiretapping] has been acknowledged by this Administration to have been authorized by the President's secret order during 2002 and reauthorized at least 30 times since...Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution."

The case, filed by the American Civil Liberties Union (ACLU) on behalf of journalists, scholars and lawyers who say the program has made it difficult for them to do their jobs because of the surveillance, brought to task the Bush administration's policy of what is allowed and what is not regarding the war on terror. The judge said the plaintiffs "sufficiently alleged that they suffered an actual, concrete injury traceable to Defendants and redressable by this court." In a statement attributed to Ann Beeson, associate legal director and the lead attorney for the plaintiffs, the ACLU holds, "By holding that even the president is not above the law, the court has done its duty."

As part of its argument, the NSA said it could not defend this case without revealing state secrets. However, in her ruling, the judge wrote, "It is undisputed that Defendants have

publicly admitted to the following: (1) the [wiretapping program] exists; (2) it operates without warrants; (3) it targets communications where one party to the communication is outside the United States, and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda. As the Government has on many occasions confirmed the veracity of these allegations, the state secrets privilege does not apply to this information."

She also pointed out that the Bush administration "has repeatedly told the general public that there is a valid basis in law for the [wiretap program]. Further, Defendants have contended that the President has the authority...to authorize the continued use of the [wiretap program]. Defendants have supported these arguments without revealing or relying on any classified information."

The ACLU's Beeson predicts the government will appeal the ruling and that the Bush administration will ask that the wiretapping be allowed to continue during the appeals process. She adds her group has made no decision as to whether it would oppose such a request.