The Bush administration may continue to fail lamentably in its defense of wiretapping without a warrant unless it can somehow explain why such drastic measures were necessary for the surveillance of international telephone calls to and from suspected terrorists.

In her opinion disemboweling the so-called Terrorist Surveillance Program (TSP), U.S. District Judge Anna Diggs Taylor noted that Congress made "numerous concessions to stated executive needs" in enacting the Foreign Intelligence Surveillance Act.

Nevertheless, Taylor went on, the government implemented the TSP "without regard to FISA" and none of its practical arguments for doing so "constitutes adequate justification for exemption from the requirements of either FISA or the Fourth Amendment."

"It is noteworthy, in this regard," she tellingly concluded in finding the program unconstitutional, "that Defendants here have sought no Congressional amendments which would remedy practical difficulty."

Government lawyers will no doubt say they can't fully explain the warrantless surveillance without divulging state secrets. But that certainly didn't fly with Taylor, who ruled that "classified information is not necessary to any viable defense to the TSP."

All this leads to one inescapable conclusion -- that there was something going on in the TSP that the administration had to keep secret even from the secret FISA court.

As the table below illustrates, Taylor's decision could hardly have been a more comprehensive victory for the ACLU, which prevailed on all the major issues presented in its challenge to the wiretapping.

By Matthew Heller
8/17/06