The Wiretapping Decision: Legal Blow or Political Boon?

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AMY LEANG / DETROIT FREE PRESS / AP

U.S. District Judge Anna Diggs Taylor, who has ruled that the government's warrantless wiretapping program is unconstitutional.

Attorney General Alberto Gonzales seemed to reflect the fatigue of a politically and legally beleaguered White House when he paused for a sigh as he began a press conference Thursday afternoon to respond to a federal judge's ruling that the Administration's controversial domestic wiretapping program is illegal and should be stopped immediately. He said he was "disappointed" by the decision — and he looked it.

The surprise ruling — in which Judge Anna Diggs Taylor said it was "never the intent of the framers to give the President such unfettered control" — raised new questions about the broad authority President Bush has claimed since the Sept. 11 attacks for secret new intelligence programs. Her decision came on the same day a federal jury in North Carolina convicted a former Central Intelligence Agency contract interrogator on charges of illegally beating a detainee shortly before the man died in Afghanistan in 2003. More important, the ruling followed a Supreme Court decision in June that the Administration's use of military tribunals in Guantanamo was illegal — until this week the biggest blow to Bush’s assertion of broad unilateral powers in the war on terrorism.

Attorneys for the Justice Department and the National Security Agency, the electronic eavesdropping shop, quickly won a stay allowing the NSA to continue its domestic spy program pending appeal. President Bush said in December, after disclosures in the media, that the so-called Terrorist Surveillance Program is used only to monitor calls between U.S. persons in phone contact with suspected al-Qaeda terrorists or supporters abroad. "The decision is unreasoned and not supported by any analysis," a senior, and bitter-sounding, Administration official complained to TIME. The decision most likely sent shudders through an intelligence community that runs numerous messy spy programs based on the guidance of the very Administration attorneys who had insisted the surveillance program is legal.

Administration supporters almost immediately began raising questions about the political views of the federal judge who made the ruling. Taylor, a Carter appointee, was once married to the late ex-Congressman Charles Diggs, a Michigan Democrat, who after their divorce was convicted in 1978 and served time in prison in a kickback scheme involving the payroll of his congressional office. The suit that Taylor ruled on was filed by the American Civil Liberties Union earlier this year. In an odd twist, Timothy Edgar, a senior ACLU leglislative aide at the time, has since joined the office of Director of National Intelligence John Negroponte as a privacy rights adviser charged with ensuring that intelligence methods do not violate Americans' rights.

House intelligence committee chairman Peter Hoekstra, a Michigan Republican, led the Republican charge against Taylor's ruling. "It is disappointing that a judge would take it upon herself to disarm America during a time of war," Hoekstra said, an unusually strong criticism of a sitting federal judge by a congressman. "The very real threat posed by radical Islamists requires every tool at our disposal, including the ability to track financial activity and the communications of terrorists."

Hoekstra also appeared to hint at the uncertainty that U.S. intelligence operatives and officials may feel in their counter-terrorism efforts if this decision stands. "I hope that it is overturned for the sake of our law enforcement and intelligence professionals, who need every resource available to them to stop terrorist plots before they are carried out, " Hoekstra said.

How the ruling will play out politically is uncertain. Some Washington insiders expected that it would give Bush and the GOP another chance to play to his strength — waging war on terror — while appealing the ruling and seeking legislative changes to accommodate the eavesdropping program. But others said it could give Democrats yet another opening to charge that Bush ignores the law and is wielding vast power in secrecy, without legal authority or broad public support.

Senator Diane Feinstein of California, a leading Democrat on the Senate intelligence committee, expressed support for the goals of the NSA program, while applauding the ruling. "I was briefed on the operational details of the NSA domestic surveillance program and believe that, with certain small changes, FISA can accommodate the program," she said. Yet she criticized Bush for using "brinkmanship" in his insistence on secrecy. "This court ruling upholds the basic principle that even the President is not outside the law and that he has exceeded his constitutional authority by implementing this warrantless domestic surveillance program," Feinstein said.

James Bamford, a respected author of books on the NSA and a plaintiff in the suit, called Taylor's ruling "very significant, because what you have here is a massive eavesdropping operation, the largest one in history. And it's a criminal statute that the President has violated," with jail terms dictated for violations. "Nobody's talking about impeachment," Bamford added, "but if you had opposite parties in Congress, you'd have a situation, I think, very much like Watergate."