LA REPUBBLICA
17 agosto 2006
Usa, giudice dichiara incostituzionali
le misure antiterrorismo di Bush
Secondo la magistratura di Detroit viola "il diritto di espressione e alla privacy"
Il piano della Nsa, prevede intercettazioni senza autorizzazione per gli americani all'estero. Il ricorso è partito dal sindacato delle Libertà Civili
DETROIT - Nuovo stop alle forzature volute da Bush per contrastare il terrorismo. Un giudice federale ha dichiarato "non costituzionale" una delle misure volute dal presidente dopo l'11 settembre: la possibilità di spiare, senza necessità di alcuna autorizzazione, le conversazioni telefoniche dei cittadini americani all'estero. E non è finita qui: Anna Diggs Taylor, il giudice di Detroit che si è schierato contro il programma della National Security Agency (Nsa), ne ha anche ordinato l'immediata interruzione.
Secondo il governo Usa, gli agenti della Nsa miravano a sventare possibili complotti terroristici contro l'America. Per il giudice, invece, le intercettazioni costituiscono una "violazione dei diritti di libertà di espressione e dei diritti alla privacy", sanciti dalla Costituzione degli Stati Uniti.
Certo è che, con la sola autorizzazione della Casa Bianca, la Nsa ha intercettato segretamente e senza un mandato di nessun giudice centinaia di migliaia di telefonate e di e-mail di cittadini statunitensi. Dura la serrata che si legge nel rapporto di 44 pagine stilato dal giudice: "Non è mai stato nelle intenzioni dei legislatori dare al Presidente un così illimitato potere di controllo, in particolare quando le sue azioni sono palesemente in contraddizione con i fondamenti dellla Carta dei diritti".
Il primo passo per mettere fine al programma è stato il ricorso contro le intercettazioni presentato dall'American Civil Liberties Union (Aclu), il sindacato delle libertà civili, a nome di un gruppo di professionisti - giornalisti, avvocati e docenti - che hanno accusato la Nsa di aver danneggiato il loro lavoro intercettando le rispettive comunicazioni. Motivo per cui, l'Aclu ha anche citato in giudizio le compagnie telefoniche che hanno partecipato al programma, con l'accusa di violazione degli obblighi verso i clienti. A questo punto è arrivata la dichiarazione ufficiale del giudice di Detroit che ne ha ordinato l' immediata cessazione.
Interrogata in merito, l'amministrazione Usa sostiene di non poter fornire, davanti a un tribunale pubblico, le ragioni specifiche per le intercettazioni: così sarebbe messa a repentaglio la sicurezza nazionale.
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IL TESTO DELLA SENTENZA:
www.washingtonpost.com/wp-srv/nation/documents/wiretap_ru...
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THE WASHINGTON POST
Can the Pentagon Pay For the War and Its New Toys?
Federal Judge Orders Halt to NSA Wiretapping
By Dan Eggen
Washington Post Staff Writer
Thursday, August 17, 2006; 5:18 PM
A federal judge in Detroit ordered a halt to the National Security Agency's warrantless surveillance program, ruling for the first time that the controversial effort ordered by President Bush was unconstitutional.
U.S. District Judge Anna Diggs Taylor wrote in a strongly-worded 43-page opinion that the NSA wiretapping program violates privacy and free-speech rights and the constitutional separation of powers between the three branches of government. She also found that it violates a 1978 law set up to oversee clandestine surveillance.
The Justice Department said that it was appealing the decision and that the parties to the lawsuit had agreed to delay the judge's order until the appeal could be heard.
"Obviously, of course I'm disappointed," Attorney General Alberto Gonzales said at a briefing for reporters. "I believe very strongly that the president does have the authority to authorize this kind of conduct, particularly in a time of war, conduct that's very consistent with what other presidents have done in a time of war. And we believe the authority comes from the authorization to use military force and from his constitutional authority as commander in chief."
Ruling in a case brought by the American Civil Liberties Union and other advocacy groups, Taylor, 73, wrote that "public interest is clear, in this matter. It is the upholding of the Constitution. . . . "
"It was never the intent of the framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights," she wrote. " . . . There are no hereditary Kings in America and no powers not created by the Constitution. So all 'inherent powers' must derive from that Constitution."
The ruling marks a significant setback for the Bush administration, which has aggressively defended the legality of the NSA program since its existence was first revealed in press reports last December. Dubbing it the "terrorist surveillance program," officials have said the effort allows the NSA to monitor telephone calls and e-mails to and from the United States without warrants when one party is suspected of ties to al-Qaeda.
The decision could also have an impact on Congress, which has for months been debating whether to limit or endorse the NSA program through legislation.
The Justice Department argued in court that the program is well within Bush's authority as president, but said proving it would require revealing state secrets. The ACLU argued that many details about the program had already been revealed by Bush and other government officials, and Taylor, who was appointed to the bench by President Jimmy Carter, agreed.
"Today's ruling is a landmark victory against the abuse of power that has become the hallmark of the Bush administration," said ACLU Executive Director Anthony D. Romero. "Government spying on innocent Americans without any kind of warrant and without congressional approval runs counter to the very foundations of our democracy."
He called the ruling "yet another nail in the coffin of the Bush administration's strategy in the war on terror. . . . The judge very clearly points out that this, at its core, is about presidential powers."
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THE NEW YORK TIMES
Federal Judge Orders End to Warrantless Wiretapping
By DAVID STOUT
Published: August 17, 2006
WASHINGTON, Aug. 17 — A federal judge in Detroit ruled today that the Bush administration’s eavesdropping program is illegal and unconstitutional, and she ordered that it cease at once.
District Judge Anna Diggs Taylor found that President Bush exceeded his proper authority and that the eavesdropping without warrants violated the First and Fourth Amendment protections of free speech and privacy.
“It was never the intent of the Framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights,” she wrote, in a decision that the White House and Justice Department said they would fight to overturn. A hearing will be held before Judge Taylor on Sept. 7, and her decision will not be enforced in the meantime pending the government’s appeal.
The judge’s ruling is the latest chapter in the continuing debate over the proper balance between national security and personal liberty since the attacks of Sept. 11, 2001, which inspired the eavesdropping program and other surveillance measures that the administration says are necessary and constitutional and its critics say are intrusive.
In becoming the first federal judge to declare the eavesdropping program unconstitutional, Judge Taylor rejected the administration’s assertion that to defend itself against a lawsuit would force it to divulge information that should be kept secret in the name of national security.
“Predictably, the war on terror of this administration has produced a vast number of cases, in which the states secrets privilege has been invoked,” Judge Taylor wrote. She noted that the Supreme Court has held that because the president’s power to withhold secrets is so powerful, “it is not to be lightly invoked.” She also cited a finding in an earlier case by the Court of Appeals for the District of Columbia Circuit that “whenever possible, sensitive information must be disentangled from nonsensitive information to allow for the release of the latter.”
In any event, she said, she is convinced that the administration could defend itself in this case without disclosing state secrets. Judge Taylor’s ruling came in a suit filed by the American Civil Liberties Union on behalf of journalists, scholars, lawyers and various nonprofit organizations who argued that the possibility of eavesdropping by the National Security Agency interfered with their work.
Although she ordered an immediate halt to the eavesdropping program, no one who has followed the controversy expects the litigation to end quickly. The White House issued a statement saying “we couldn’t disagree more” with Judge Taylor’s decision and crediting the surveillance program with saving American lives.
Attorney General Alberto Gonzales said this afternoon that he was disappointed with the decision, and that while the stay is in place “we will continue to utilize the program to ensure that America is safer.” Mr. Gonzales said he remained confident that the program was constitutional, and that Congress had given the president all the authority he needed when it authorized the use of military force after the Sept. 11 attacks.
Earlier, the Justice Department called the surveillance program “a critical tool” against Al Qaeda and said the parties to the suit have agreed to a stay of Judge Taylor’s order until the Sept. 7 hearing. On that day, the judge will be asked to prolong the stay of her order pending further appeals, to the Court of Appeals for the Sixth Circuit or perhaps to the Supreme Court.
Some Republicans voiced disappointment over the ruling, while Democrats praised it. The starkly different reactions signaled more heated debate on Capitol Hill when Congress reconvenes.
But for the moment, the ruling by Judge Taylor caused elation among the plaintiffs.
“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.’’
The surveillance act was passed by Congress in 1978 in response to disclosures of previous government improprieties in eavesdropping. The act established a secret court to handle applications for surveillance operations, and set up procedures for them to take place while applications for warrants are pending in some limited circumstances and for limited times.
Judge Taylor said “the president has acted, undisputedly, as F.I.S.A. forbids,” thus defying the express will of Congress, and she was unpersuaded by the government’s stance that it could not defend itself in the lawsuit without doing the country harm.
“Consequently, the court finds defendants’ arguments that they cannot defend this case without the use of classified information to be disingenuous and without merit,” she wrote.
The judge, who heard arguments in the case in June, brushed aside several assertions made by lawyers for the National Security Agency. She held that, contrary to the N.S.A.’s assertions, the plaintiffs were suffering real harm, and had standing to sue the government.
“Here, plaintiffs are not asserting speculative allegations,” she said.
Judge Taylor, appointed by President Jimmy Carter in 1979, did not deal a total defeat to the administration. She dismissed a separate claim by the A.C.L.U. over data-mining of telephone records, agreeing that further litigation could indeed jeopardize state secrets.
But over all, Judge Taylor’s decision was a rebuke to the administration, as she made clear in closing by quoting Chief Justice Earl Warren’s words in a 1967 ruling: “Implicit in the term ‘national defense’ is the notion of defending those values and ideas which set this nation apart.”
Democrats said Judge Taylor saw things the right way. “Today’s district court ruling is a strong rebuke of this administration’s illegal wiretapping program,” said Senator Russell D. Feingold of Wisconsin. “The president must return to the Constitution and follow the statutes passed by Congress. We all want our government to monitor suspected terrorists, but there is no reason for it to break the law to do so.”
Representative Ed Markey of Massachusetts, a senior Democrat on the House Homeland Security Committee, said the administration should stop “poking holes in the Constitution” and concentrate on “plugging holes in homeland security.”
But Republicans lined up behind the administration. "America cannot stop terrorists while wearing blinders,” said House Speaker J. Dennis Hastert. “We stop terrorists by watching them, following them, listening in on their plans, and then arresting them before they can strike. Our terrorist surveillance programs are critical to fighting the war on terror and saved the day by foiling the London terror plot.”
Senator Bill Frist of Tennessee, the majority leader, agreed. “We need to strengthen, not weaken, our ability to foil terrorist plots before they can do us harm,” he said. “I encourage swift appeal by the government and quick reversal of this unfortunate decision."
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THE CHICAGO TRIBUNE
August 17, 2006
White House vows fight for wiretaps
Posted by Frank James at 3:00 pm CDT
The Chicago Tribune's Washington Bureau
It took a while but the White House finally issued a statement this afternoon after a federal judge in Detroit ruled as unconstitutional this morning the Bush Administration’s warrantless monitoring of domestic phone calls, a program President Bush has touted as essential to the nation’s counterterrorism efforts.
As could be expected, the administration and its supporters leaned heavily on last week’s arrests in Britain of the alleged would-be airplane bombers to make the case for the necessity of what the administration calls its Terrorist Surveillance Program.
According to reports, the British used electronic surveillance and other methods over a number of months to track the individuals it arrested.
Here is the statement from White House Press Secretary Tony Snow:
“Last week America and the world received a stark reminder that terrorists are still plotting to attack our country and kill innocent people. Today a federal judge in Michigan has ruled that the Terrorist Surveillance Program ordered by the President to detect and prevent terrorist attacks against the American people is unconstitutional and otherwise illegal.
“We couldn’t disagree more with this ruling, and the Justice Department will seek an immediate stay of the opinion and appeal. Until the Court has the opportunity to rule on a stay of the Court's ruling in a hearing now set for September 7, 2006, the parties have agreed that enforcement of the ruling will be stayed.
“United States intelligence officials have confirmed that the program has helped stop terrorist attacks and saved American lives. The program is carefully administered, and only targets international phone calls coming into or out of the United States where one of the parties on the call is a suspected Al Qaeda or affiliated terrorist.
“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, and it is the President’s most solemn duty to ensure their protection.
“The Terrorist Surveillance Program is firmly grounded in law and regularly reviewed to make sure steps are taken to protect civil liberties. The Terrorist Surveillance Program has proven to be one of our most critical and effective tools in the war against terrorism, and we look forward to demonstrating on appeal the validity of this vital program.”
The decision was another legal setback for the administration’s approach to fighting the Global War on Terror. Earlier this summer, the Supreme Court ruled in the Hamdan v. Rumsfeld decision that the administration didn’t have the authority to empanel military tribunals to try enemy combatants.
Here’s a copy of the opinion by U.S. District Judge Anna Diggs Taylor who was appointed to the federal bench by former President Jimmy Carter.
The administration has made a number of arguments in court and to the public as to why the president had the authority to order the National Security Agency to conduct the surveillance.
Among its assertions for what it calls the Terrorist Surveillance Program, was the notion that the president could order up the surveillance under the “inherent power” he has as president.
Diggs starchily debunked that and other administration arguments. It contains a few lines sure to be picked up by the president's critics.
“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.
“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…”
Yaser Hamdi was a U.S. citizen who was being held as an enemy combatant by federal authorities without access to an attorney or a trial. The Supreme Court decided in 2004 that the Fifth Amendment gives a U.S. citizen the right to contest their imprisonment before a neutral authority.
The reaction to the decision is rolling in.
“This ruling is a victory for the Constitution and for all Americans who value freedom of speech and the right to privacy,” said Arsalan Iftikhar, national legal director for the Council on American-Islamic Relations, which joined the American Civil Liberties Union and other plaintiffs to file the suit.
On the other side was a statement from Speaker Dennis Hastert (R-Ill.) “America cannot stop terrorists while wearing blinders. We stop terrorists by watching them, following them, listening in on their plans, and then arresting them before they can strike.
“Our terrorist surveillance programs are critical to fighting the War on Terror and saved the day by foiling the London terror plot.
“We cannot lose sight of the fact that America needs this information to protect itself. If the courts of final review rule that these procedures don't work, we will find a way that does. We hope that the Democrats will join us in an effort to make sure America continues these vital terrorist surveillance programs.”
One of the pithiest reactions came from Rep. Ed Markey (D-Mass.) who nearly always has something pungent to say.
"Instead of poking holes in the Constitution, the Administration should get back to plugging holes in our homeland security.
"Democrats and Republicans agree that we should do everything possible to track terrorists here and abroad, but that alone will not close the gaping homeland security loopholes that still exists nearly five years after 9/11.
"Rather than griping about having to go to a FISA court for legal clearance to wiretap potential terrorists, the Bush Administration should fully inspect cargo put on passenger planes and make sure that a nuclear bomb isn't sent on a container ship to a major U.S. port."