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August 21, 2006

Victory on wiretaps could vanish without your immediate support

Dear Friends,

Last week US District Court Judge Anna Diggs Taylor struck down the President's warrantless wiretapping program as unconstitutional. Her ruling is a victory for the Constitution, the Bill of Rights, the rule of law, and the people of the United States--if we can keep it!

Government lawyers have negotiated a stay of the injunction until the appeal to the Sixth Circuit, set for September 7. The case could go to the Supreme Court, where the score for the President's exaggerated view of his constitutional powers now stands at 0-for-3 (Hamdan v. Rumsfeld, Hamdi et al. v. Rumsfeld, and Rasul v. Bush).

The President and his supporters don't want to lose a fourth time, and the Cheney-Specter bill (S. 2453) is just what they need to avoid another loss. The Senate Judiciary Committee is expected to vote on the bill on Thursday, September 7. Assuming the bill passes the committee, Senator Specter may speed up final passage by attaching it to a "must-pass" bill as an amendment. If S. 2453 passes:

  • The NSA warrantless wiretapping program becomes legal, forever allowing presidents to set up secret surveillance programs without court oversight.
  • All pending court cases challenging the program would be swept into the secret Foreign Intelligence Surveillance Act (FISA) Court, which (a) was not set up to rule on the legality of programs, (b) not only favors the Administration it serves but is off-limits to anyone arguing the opposing side, and (c) is extremely unlikely to release its ruling to the public.

Don't forget that Specter's justification for his bill is to obtain judicial review for the President's program. Well, Judge Taylor has reviewed the case and found it violates the Constitution's Separation of Powers, the First and Fourth amendments of the Bill of Rights, and FISA. (Click here for the ruling and key quotes, plus links to articles.)

Don't let President Bush go court-shopping to the secret FISA court. Speak up right now, while our Senators and Representatives are visiting their districts. Look up their numbers at For example:

  • Attend their town hall meetings. Call their local offices to find out if, when and where they are being held.
  • Organize and attend in-district meetings. Check out the BORDC guidebook to Congressional meetings.
  • Telephone their district and Washington, DC, offices.

Thanks to everyone who used BORDC's website to send nearly 3,000 faxes to their Senators about this issue. We would greatly appreciate your tax-deductible donation to offset the cost of the faxes!

Sample message for Senators: "I am calling about Senator Specter's bill, S. 2453. Judge Taylor is correct: The President's warrantless eavesdropping program is unconstitutional and unlawful. The Foreign Intelligence Surveillance Act already gives the President broad latitude to wiretap al-Qaeda conversations without warrants and gives him easy access to warrants if he needs to wiretap Americans. S. 2453, is nothing more than an end-run around constitutional checks and balances, the First and Fourth amendments of the Bill of Rights, and the FISA law. Please stand up for my constitutional rights and the rule of law by opposing S. 2453."

Sample message for House members: "I'm concerned about the NSA warrantless wiretapping program, which a federal judge has struck down as unconstitutional. The House will be considering bills to amend FISA and make the NSA warrantless wiretapping program legal. Are you willing to vote for a bill that would legalize the program, and forever allow presidents to set up surveillance without going to a court or heeding congressional law? Or are you going to protect the Bill of Rights, and support only legislation which keeps FISA safeguards of liberty in place?"

Other talking points for Senators:

  • I'm outraged that the President and his supporters claim that a state of war means the NSA warrantless wiretapping is justified. Illegal, unconstitutional programs are never justified! I ask Senator __________ to stand up for the rule of law by opposing Senator Specter's bill, S. 2453.
  • I believe Judge Taylor ruled correctly on the President's warrantless wiretapping program. And it's proper for the case to go through the court of appeals and to the Supreme Court if necessary. But Senator Specter has drafted a bill, S. 2453, that would pull the ACLU case and all suits against the wiretapping program out of the courts and into the secret FISA court that is accountable only to the administration. That is wrong, and it is unfair to the American people. Please make sure that doesn't happen by opposing S. 2453.
  • The President's illegal warrantless wiretapping program has made me aware of just how much our constitutional rights have deteriorated in the so-called "war on terror." The Bill of Rights and the rule of law do not become void whenever the President says we are at war. I ask you to protect the constitutional rights of your constituents to be free from unreasonable searches and seizures by opposing Senator Specter's bill, S. 2453.
  • Senator Specter says he drafted a bill, S. 2453, so the President's NSA wiretapping program would get a court's review. It's getting that review now: Judge Taylor says it's unconstitutional and illegal. Rather than let the case go through appeals, Senator Specter's bill would hijack the case and send it to the secret Foreign Intelligence Surveillance Court, where we'll never find out what happened. Please oppose S. 2453 and let the courts do their job.

Congratulations to the American Civil Liberties Union, the Council on American-Islamic Relations, and the National Association of Criminal Defense Lawyers for bringing the case to court and to an initial victory. Your support is needed to see it through to final victory.

For more information on the warrantless wiretapping program, including a simplified diagram of when FISA warrants are required and not required, go to

Thank you for all you do to defend civil liberties!

Nancy Talanian
Bill of Rights Defense Committee