Judge Rules NSA Warrantless Spy Program Unconstitutional

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A federal judge in Detroit has ruled that the Bush administration's warrantless surveillance program is unconstitutional and must be halted. President Bush secretly authorized the National Security Agency program in 2001 and it was revealed in the media last year.

U.S. District Judge Anna Diggs Taylor found that the program violated freedom of speech, protections against unreasonable searches and a constitutional check on the power of the presidency.

In her 43-page ruling, Taylor wrote "There are no hereditary kings in America and no powers not created by the Constitution."

Attorney General Alberto Gonzales held a news conference after the decision came out to defend the surveillance program.

• Alberto Gonzales, Attorney General, speaking August 17, 2006.

The wiretapping suit was filed in Michigan by the American Civil Liberties Union on behalf of a number of journalists, lawyers and scholars who believed their communications had been monitored.

The Justice Department has appealed the decision and a hearing is set for September 7th. The ruling is on hold while the appeals process is under way.

• Glenn Greenwald, constitutional law attorney specializing in presidential power and First Amendment issues. He is the author of the new book "How Would a Patriot Act?" and runs the blog Unclaimed Territory.

JUAN GONZALEZ: Attorney General Alberto Gonzales held a news conference after the decision came out to defend the surveillance program.

ALBERTO GONZALES: We have confidence in the lawfulness of this program, and that's why the appeal has been lodged. This is an important program. We have the leaders in the intelligence community who have testified to Congress that it's been effective in protecting America. And so, we're going to do everything that we can do in the courts to allow this program to continue.

AMY GOODMAN: Attorney General Alberto Gonzales. The wiretapping suit was filed in Michigan by the American Civil Liberties Union on behalf of a number of journalists, lawyers and scholars, who believe their communications have been monitored. The Justice Department has appealed the decision, and a hearing is set for September 7. The ruling's on hold while the appeals process is underway. Glenn Greenwald joins us now on the phone, a constitutional law attorney specializing in presidential power and First Amendment issues, author of the new book, How Would a Patriot Act? He runs the blog, “Unclaimed Territory.” We welcome you, Glenn, to Democracy Now!

GLENN GREENWALD: Thanks for having me.

AMY GOODMAN: Can you talk about the significance of this federal judge ruling?

GLENN GREENWALD: Well, there are several aspects to why it's so significant, the first of which is, this is the first time a federal court has ruled on the legality of the Bush administration's highly controversial warrantless eavesdropping program, and the court rather resoundingly said that it violates several constitutional protections and also violates the law. So it's the first judicial decision on what has been a highly controversial political issue.

And then, beyond that, the court was very emphatic in rejecting the Bush administration's arguments, not just with regard to warrantless eavesdropping, but more broadly with regard to its radical theories of executive power that say that the President has almost unchecked authority in the area of national security, and it's now the second court, after the Supreme Court in Hamdan did that, to say that that theory is alien to our constitutional traditions.

JUAN GONZALEZ: Now, the administration has clearly indicated it's going to appeal this ruling to the Federal Court of Appeals, and some critics have said that the judge's ruling in some areas will open itself up to possible reversal. Could you talk about that?

GLENN GREENWALD: Well, the opinion in certain places is not a model of constitutional scholarly reasoning. It is a little bumpy in some places. But with an issue that is of this magnitude, of an initiative that’s this significant and has such implications for so many areas of how our government works, an appeals court is going to look at these issues starting from scratch, anyway. I mean, it doesn't much matter how artful the district court's opinion is, the 6th Circuit Court of Appeal, and quite possibly the Supreme Court after that, is going to look from the beginning to see whether or not this program really is unconstitutional and whether or not it violates the law. So there are parts of the opinion that are actually quite eloquent and quite powerful, in terms of reaffirming the basic principle of our system of government. There are other areas, though, where it’s true there are argumentative holes in the judge's opinion.

AMY GOODMAN: Glenn Greenwald, that was a pretty strong quote of U.S. District Judge Anna Diggs Taylor, who said, "There are no hereditary kings in America and no powers created by the Constitution."

GLENN GREENWALD: Well, it is strong language. And interestingly, though, the Supreme Court of the United States used similar language one month ago in Hamdan, when it said also that the President has no right, including in the area of national security, including in time of war, to act outside of the law, that in our system of government, the President is subject to the rule of law. Only a king can operate outside of the rule of law. And this court has adopted that approach, that rhetoric, because the Bush administration’s theory of executive power really does vest in him the power of a monarch, and it's very encouraging, and surprisingly so, to see courts being so explicit about what this government is arguing in and why it's so wrong.