WASHINGTON—In a scathing rebuke, a federal judge ruled Thursday that the Bush administration's warrantless eavesdropping program is unconstitutional and should be shut down, but legal scholars said the administration has a good chance of reversing the decision on appeal.
"There are no hereditary kings in America and no power not created by the Constitution," U.S. District Judge Anna Diggs Taylor of Detroit said in a 43-page opinion blasting the program.
Taylor said that the program, which President Bush secretly approved after the terrorist attacks of Sept. 11, 2001, violated the rights of free speech and privacy and went far beyond the president's authority. Administration officials say the surveillance program targets telephone calls and e-mails between the United States and suspected terrorists overseas.
The Justice Department immediately appealed the ruling, and all the parties agreed that the Bush administration is free to keep eavesdropping without warrants pending the Sept. 7 appeals-court hearing.
While the ruling was a clear victory for Bush's critics, it didn't end the legal battle over the government's secret eavesdropping. Legal scholars said the administration had a good chance of winning its appeal to the 6th U.S. Circuit Court of Appeals in Cincinnati, which handles cases from Michigan, Kentucky, Ohio and Tennessee.
"This isn't the definitive word," said Bruce Fein, a Washington lawyer who agreed with Taylor's conclusions. "This is going to the 6th Circuit. If the 6th Circuit goes against the government, it's going to the Supreme Court."
Carl Tobias, a constitutional scholar at the University of Richmond's law school, said the 6th Circuit tended to be sympathetic to the government's national-security concerns.
"There are more judges on that court who come down on the national security end of the spectrum than the civil liberties end," he said. "The majority probably would reverse this decision."
Administration officials suggested that the ruling, if it stands, will increase the risk of a terrorist attack.
"We couldn't disagree more with this opinion," White House spokesman Tony Snow said in a statement. "The whole point is to detect and prevent terrorist attacks before they can be carried out. That's what the American people expect from their government."
Snow noted that the ruling came a week after the alleged aircraft-bombing plot in London offered "a stark reminder that terrorists are still plotting to attack our country."
Government lawyers called the surveillance program "a critical tool" in the war on terrorism and "an early warning system" against attacks.
"We're going to do everything that we can in the courts to allow this program to continue," Attorney General Alberto Gonzales said.
The American Civil Liberties Union, which filed the Detroit lawsuit on behalf of plaintiffs, called the decision "a landmark victory against the abuse of power that has become the hallmark of the Bush administration."
The ACLU sued on behalf of a group of journalists, lawyers and researchers, including several from Detroit, who suspected that government eavesdroppers had targeted their international calls.
Bush's decision to establish the warrantless surveillance program lets government agents bypass the Foreign Intelligence Surveillance Act, which requires court approval for domestic surveillance.
The law, enacted in 1978 in response to illegal wiretaps during the Nixon administration, includes emergency provisions that let investigators seek court approval up to 72 hours after the surveillance starts. Bush and his advisers say the law is too cumbersome when dealing with possible terrorist attacks.
The president contends that his constitutional power as commander in chief and the congressional resolution authorizing the use of military force against terrorists empowered him to establish the eavesdropping program. The New York Times revealed the secret surveillance late last year.
Taylor, a liberal Democrat whom President Jimmy Carter appointed to the court, concluded that Bush had overstepped his authority. She also rejected the government's argument that the case should be tossed out to avoid the risk of exposing government secrets.
"Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution," she wrote.
The ruling complicates efforts in Congress to come up with a compromise that could satisfy both sides in the dispute. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., is pushing legislation that's intended to put the surveillance program under the jurisdiction of a special court established by the Foreign Intelligence Surveillance Act.
Democrats blocked a vote on Specter's bill before the August recess, saying it wouldn't guarantee sufficient court oversight. They appeared unlikely to back down now that a federal judge essentially has endorsed their views.
"We can and should wiretap terrorists under the current FISA law," Sen. Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee, said after Taylor's ruling. "The problem has been the Bush-Cheney administration's insistence on doing it illegally, without checks and balances to prevent abusing the rights of Americans."
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(c) 2006, McClatchy-Tribune Information Services.
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