The Illegal NSA Program Is Found to Be Illegal

Big breaking news from MSNBC:

DETROIT - A federal judge ruled Thursday that the government’s warrantless wiretapping program is unconstitutional and ordered an immediate halt to it.

U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency's program, which she says violates the rights to free speech and privacy.

“Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution,” Taylor wrote in her 43-page opinion.

Glenn Greenwald has analysis of the opinion here.

Judge Anna Diggs Taylor's opinion can be found here, and the order enjoining the program here.

A quick review of the opinion shows that in Section 2, the government's assertion of the so-called "states secret doctrine" (discussed previously here, here, and here) was rejected, largely because the program was already confirmed to exist by the President, and therefore cannot be a "state secret". The related data-mining program under which the NSA has allegedly obtained telephone and internet records of millions of Americans was dismissed because it has not yet been confirmed to exist by the government.

In Section 3, the standing issue (previously discussed here) was resolved in favor of the plaintiffs despite the lack of knowledge of who exactly has been spied on. Plaintiffs, who include attorneys, journalists and scholars who make confidential overseas telephone calls in the course of their professional responsibilities, suffered concrete and particularized injury in that their knowledge of the ongoing and admitted surveillance "has chilled their sources, clients, and potential witnesses from communicating with them." They would be "significantly crippled . . . in their ability to report the news and competently and effectively represent their clients." Further, the Court found:

that the injuries alleged by Plaintiffs are “concrete and particularized”, and not “abstract or conjectural.” The TSP is not hypothetical, it is an actual surveillance program that was admittedly instituted after September 11, 2001, and has been reauthorized by the President more than thirty times since the attacks. The President has, moreover, emphasized that he intends to continue to reauthorize the TSP indefinitely. Further, the court need not speculate upon the kind of activity the Plaintiffs want to engage in - they want to engage in conversations with individuals abroad without fear that their First Amendment rights are being infringed upon. Therefore, this court concludes that Plaintiffs have satisfied the requirement of alleging “actual or threatened injury” as a result of Defendants’ conduct.

Moreover, if the Court refused to consider the Plaintiffs' case based on a technicality like standing,

the President’s actions in warrantless wiretapping, in contravention of FISA, Title III, and the First and Fourth Amendments, would be immunized from judicial scrutiny. 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. The three separate branches of government were developed as a check and balance for one another. It is within the court’s duty to ensure that power is never “condense[d] ... into a single branch of government.” Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion). We must always be mindful that “[w]hen the President takes official action, the Court has the authority to determine whether he has acted within the law.” Clinton v. Jones, 520 U.S. 681, 703 (1997). “It remains one of the most vital functions of this Court to police with care the separation of the governing powers . . . . When structure fails, liberty is always in peril.” Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 468 (1989) (Kennedy, J., concurring).

Because of the very secrecy of the activity here challenged, Plaintiffs each must be and are given standing to challenge it, because each of them, is injured and chilled substantially in the exercise of First Amendment rights so long as it continues. Indeed, as the perceived need for secrecy has apparently required that no person be notified that he is aggrieved by the activity, and there have been no prosecutions, no requests for extensions or retroactive approvals of warrants, no victim in America would be given standing to challenge this or any other unconstitutional activity, according to the Government. The activity has been acknowledged, nevertheless.

Section 4 provides a history of electronic surveillance activities in America, including the events leading to the Church Committee and the enactment of FISA, the law broken by the Administration. As the Judge noted:

In 1976 the Congressional “Church Committee” disclosed that every President since 1946 had engaged in warrantless wiretaps in the name of national security, and that there had been numerous political abuses, and in 1978 Congress enacted the FISA." FISA, which "was essentially enacted to create a secure framework by which the Executive branch may conduct legitimate electronic surveillance for foreign intelligence while meeting our national commitment to the Fourth Amendment" is the "background" under which the President chose to secretly surveil Americans without FISA warrants.

The Fourth Amendment, which prohibits unreasonable searches and seizures, discussed in Section 5, "was adopted to assure that Executive abuses of the power to search would not continue in our new nation," as they had under the authority of England. FISA was a concession between Fourth Amendment concerns and the needs of the Executive to engage in surveillance by providing oversight to prevent abuse:

In enacting FISA, Congress made numerous concessions to stated executive needs. They include delaying the applications for warrants until after surveillance has begun for several types of exigencies, reducing the probable cause requirement to a less stringent standard, provision of a single court of judicial experts, and extension of the duration of approved wiretaps from thirty days (under Title III) to a ninety day term.

All of the above Congressional concessions to Executive need and to the exigencies of our present situation as a people, however, have been futile. The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in violation of the Fourth Amendment.

The President of the United States is himself created by that same Constitution.

The First Amendment is also implicated by the President's secret illegal wiretapping program, as discussed in Section 6. The speech of people engaged in telephone conversations overseas has been chilled by the knowledge that no overseas conversation is confidential. As the Judge puts it: "The President of the United States, a creature of the same Constitution which gave us these
Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well."

The President's violation of Separation of Powers principles, discussed in Section 7, clearly offended the Court. It's curious that Congress has not taken umbrage itself:

The Constitution of the United States provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States. . . .” It further provides that “[t]he executive Power shall be vested in a President of the United States of America.” And that “. . . he shall take care that the laws be faithfully executed . . . .

In this case, the President has acted, undisputedly, as FISA forbids. FISA is the expressed statutory policy of our Congress. The presidential power, therefore, was exercised at its lowest ebb and cannot be sustained.

. . .

In this case, if the teachings of Youngstown are law, the separation of powers doctrine has been violated. The President, undisputedly, has violated the provisions of FISA for a five-year period.

The Court spends little time dismissing the Government's specious argument that the Authorization for the Use of Military Force authorized the warrantless surveillance at issue.

First, this court must note that the AUMF says nothing whatsoever of intelligence or
surveillance. The government argues that such authority must be implied. Next it must be noted that FISA and Title III, are together by their terms denominated by Congress as the exclusive means by which electronic surveillance may be conducted. Both statutes have made abundantly clear that prior warrants must be obtained from the FISA court for such surveillance, with limited exceptions, none of which are here even raised as applicable. Indeed, the government here claims that the AUMF has by implication granted its TSP authority for more than five years, although FISA’s longest exception, for the Declaration of War by Congress, is only fifteen days from date of such a Declaration.

FISA’s history and content, detailed above, are highly specific in their requirements, and the AUMF, if construed to apply at all to intelligence is utterly general. In Morales v. TWA, Inc., 504 U.S. 374 (1992), the Supreme Court taught us that “it is a commonplace of statutory construction that the specific governs the general.” Id. at 384. The implication argued by Defendants, therefore,
cannot be made by this court.

Further, "[e]ven if that Resolution superceded all other statutory law, Defendants have violated the Constitutional rights of their citizens including the First Amendment, Fourth Amendment, and the Separation of Powers doctrine."

The President's assertion that he has "inherent power" to violate laws of Congress like FISA is dealt with in Section 9:

Article II of the United States Constitution provides that any citizen of appropriate birth, age and residency may be elected to the Office of President of the United States and be vested with the executive power of this nation.

The duties and powers of the Chief Executive are carefully listed, including the duty to be Commander in Chief of the Army and Navy of the United States, and the Presidential Oath of Office is set forth in the Constitution and requires him to swear or affirm that he “will, to the best of my ability, preserve, protect and defend the Constitution of the United States.”

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. In the Youngstown case the same “inherent powers” argument was raised and the Court noted that the President had been created Commander in Chief of only the military, and not of all the people, even in time of war. Indeed, since Ex Parte Milligan, we have been taught that the “Constitution of the United States is a law for rulers and
people, equally in war and in peace. . . .” Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866). Again, in Home Building & Loan Ass’n v. Blaisdell, we were taught that no emergency can create power.

. . .

The argument that inherent powers justify the program here in litigation must fail.

In her conclusion, the Court states that any irreparable injury sustained by the Government by issuing the injunction "may be rectified by compliance with our Constitution and/or statutory law, as amended if necessary."

Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution.

As Justice Warren wrote in U.S. v. Robel, 389 U.S. 258 (1967):

Implicit in the term ‘national defense’ is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which makes the defense of the Nation worthwhile. Id. at 264

Update:

Further thoughts from Jack Balkin.

The ACS Blog has its own analysis, as well as some unfortunate links to the other side of the aisle: "The National Review's Corner calls this a "TERRORIST FRIENDLY RULING," and Red State says that democracy is a 'suicide pact.'"