NSA Surveillance

On Thursday, August 17th, U.S. District Judge Anna Diggs Taylor became the first judge not only to hear a case regarding the Bush Administration’s wiretapping program, but also the first judge to strike down the warrantless NSA surveillance program as unconstitutional. The legal basis for Taylor’s decision was that the program violated the Fourth Amendment provision for reasonable privacy rights. The Bush Administration commissioned the Justice Department to immediately appeal the decision, which will be heard by the 6th Circuit Court of Appeals starting September 7th.

Taylor’s argument for the right to privacy in the Fourth Amendment is certainly legally valid and, considering the wide spread use of this program to monitor phone calls and emails, is lauded by both Democrats and libertarians as a critical protection of a fundamental liberty. The Bush Administration, however, has continued its advocacy for the surveillance program on the grounds that the emails and phone calls are targeted at those who are communicating internationally and are suspected of involvement in terrorist organizations. While this latter argument has been used repeatedly after the September 11, 2001, World Trade Center attack, it has fallen on the deaf ears of an increasingly skeptical American public.

Bush has appointed a majority of the justices on the 6th Circuit Court that will hear the government’s case for appeal, but that does not guarantee that his program will survive. Many justices seen as conservative are often concerned about the level of intrusion that the government has in American life. However, the ACLU and other organizations concerned about the program’s civil liberties implications have had to concede the fact that the program will continue at least through the appeals hearing.

There is no doubt that this case will eventually make it to the Supreme Court and both sides on the NSA surveillance issue are hoping that it does so that a definitive ruling will be on the books. However, it seems unlikely that there is a sound legal argument for the Bush administration, considering the clear mandate of the Fourth Amendment to protect individual Americans from government intrusion. The Bush administration’s appeal to popular sentiment and the hope that executive power is broad enough to allow NSA surveillance may work in the ballot box, but not in a court of law.