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Government Plans Appeal of Wiretapping Ruling

STEVE INSKEEP, host:

It's MORNING EDITION from NPR News. I'm Steve Inskeep. Good morning. The Bush administration says it will appeal a ruling against what it calls the Terrorist Surveillance Program. A federal judge in Detroit said yesterday that warrantless surveillance by the National Security Agency violates both federal law and the Constitution. But the surveillance will continue for the time being and supporters of the effort don't appear too worried.

Here's NPR's Larry Abramson.

LARRY ABRAMSON reporting:

When the existence of the Terrorist Surveillance Program was revealed last December, the American Civil Liberties Union vowed it would stop the program with lawsuits on behalf of alleged victims. None could prove they'd been monitored, but all the victims said their free speech had been chilled by the prospect of spying. They said their sources on subjects like terrorism or Guantanamo Bay detentions dried up out of fear that Washington was listening. Anthony Romero, executive director of the ACLU, says yesterday's decision found those people have suffered harm.

Mr. ANTHONY ROMERO (ACLU): At its core, today's ruling addresses the abuse of presidential power and reaffirms the system of checks and balances that's necessary in our democracy.

ABRAMSON: The decision focused on a contradiction in the government's position. The administration argued in court the suit had to be stopped because it would jeopardize state secrets. But at the same time President Bush and other officials described how the program worked and sang its praises, even devising a catchy name, Terrorist Surveillance Program. In the end Judge Anna Diggs Taylor agreed that those public utterances undermined the state secrets claim.

ACLU attorney Ann Beeson.

Ms. ANN BEESON (ACLU): She didn't need any more information and we didn't need any more information to determine whether the law was valid. And in fact she found the government's arguments disingenuous, she said, because the government had been so publicly defending the legality of the program.

ABRAMSON: In fact, the judge ruled against the ACLU on one point. She threw out a claim that the government has used data mining technology to analyze phone traffic. That's one part of the program the government has not acknowledged. The government wasted little time on the details of the decision and said it was simply wrong and that the Justice Department would appeal. A rather weary-looking Attorney General Alberto Gonzales once again defended the program.

Mr. ALBERTO GONZALES (U.S. Attorney General): It has been reviewed by a number of lawyers within the administration, including lawyers at the NSA, including lawyers at the Department of Justice. It is a program that is reviewed periodically for its continued effectiveness. It is reviewed periodically to ensure that it remains lawful.

ABRAMSON: The judge ordered that the program be shut down, but that mandate is on hold as the appeal moves forward. And supporters at the NSA effort are confident this judge's opinion will fall pretty quickly. Attorney John Schmidt was with the Justice Department under President Clinton. He says Judge Taylor ignored opinions that backed the administration.

Mr. JOHN SCHMIDT (Former Justice Department Attorney): She completely ignores the fact that there is an opinion of three Court of Appeals judges that came down in 2002 - the so-called Foreign Intelligence Surveillance Court of Review - which says flatly that the president does have that authority and Congress cannot take it away from him.

ABRAMSON: Many critics of the program have conceded the president can wiretap for national security purposes but they contend Congress regulated that power in 1978 by passing the Foreign Intelligence Surveillance Act. It requires warrants for such wiretaps. John Schmidt says the judge simply dismissed the president's inherent power to eavesdrop.

Mr. SCHMIDT: So she then says it's irrelevant whether the Foreign Intelligence Surveillance Act, the statute, could constitutionally limit the president's authority. That's an extreme point of view that virtually nobody has been advocating.

ABRAMSON: While this suit moves forward the NSA program is the target of numerous other legal actions.

Larry Abramson, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Larry Abramson
Larry Abramson is NPR's National Security Correspondent. He covers the Pentagon, as well as issues relating to the thousands of vets returning home from the wars in Afghanistan and Iraq.
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