Decision ‘08

Federal Judge Declares Bush’s NSA Program Illegal And Unconstitutional

Chalk this one up as a (temporary) victory for the foes of the ‘imperial presidency’:

A federal judge in Detroit ruled today that the Bush administration’s eavesdropping program is illegal and unconstitutional, and she ordered that it cease at once.

District Judge Anna Diggs Taylor found that President Bush exceeded his proper authority and that the eavesdropping without warrants violated the First and Fourth Amendment protections of free speech and privacy.

“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,” she wrote.In becoming the first federal judge to declare the eavesdropping program unconstitutional, Judge Taylor rejected the administration’s assertion that to defend itself against a lawsuit would force it to divulge information that should be kept secret in the name of national security.

“Predictably, the war on terror of this administration has produced a vast number of cases, in which the states secrets privilege has been invoked,” Judge Taylor wrote. She noted that the Supreme Court has held that because the president’s power to withhold secrets is so powerful, “it is not to be lightly invoked.” In any event, she said, she is convinced that the administration could defend itself in this case without disclosing state secrets.Judge Taylor’s ruling came in a suit filed by the American Civil Liberties Union on behalf of journalists, scholars, lawyers and various nonprofit organizations who argued that the possibility of eavesdropping by the National Security Agency interfered with their work.

Although she ordered an immediate halt to the eavesdropping program, no one who has followed the controversy expects the litigation to end quickly. The Justice Department said it was preparing its response to the ruling, and it was widely assumed that that response would include a request to postpone enforcement of Judge Taylor’s decree pending appeals.

The request for a stay of enforcement could be lodged with Judge Taylor herself, or with the United States Court of Appeals for the Sixth Circuit.

I’m not too worked up about this decision - indeed, as I’ve long said, I welcome outcomes like this, because it brings us one step closer to SCOTUS accepting the case, and a definitive legal outcome to a program that is too vital to hang in legislative limbo. This isn’t the end, but it’s one step closer, and regardless of the outcome, we need closure on this issue…

10 Responses to “Federal Judge Declares Bush’s NSA Program Illegal And Unconstitutional”

1 Frommeds Says:
August 17th, 2006 at 2:31 pm
I’m pretty conservative but this program even freaked me out. Okay, I have a libertarian bent but…there’s a reason this program provoked shouts of worry from across BOTH sides of the isle.

I don’t think SCOTUS is going to rule for the US.

For on appeal: Thomas, Scalia, Alito, Roberts
Against on appeal: Stevens, Ginsberg, Breyer, Souter
Swing Vote: Kennedy

Kennedy is pretty libertarian minded. I think he could easily rule with the liberal wing on this one.

I don’t understand why the government didn’t go to FISC for every warrant, if this was so vitally important? I mean they’re as liberal with the term “probable cause” as any DoJ official could ever hope. If they can’t grant you an individual warrant then you’re way off the map in terms of civil liberties.
2 Ryan Bonneville Says:
August 17th, 2006 at 2:56 pm
What’s interesting about the decision is that it’s so nakedly political. I think Taylor reached the right result for sure, but she did it for all the wrong reasons. There is no First or Fourth Amendment violation here, but there is certainly a separation of powers problem. The President authorized the program in direct opposition to FISA. He had no justification for doing so, and hopefully the Appeals/Supreme Court will focus on that aspect of the case.
3 Dmac Says:
August 17th, 2006 at 3:59 pm
Another Carter appointee on the bench - quel surprise at the decision.
4 Anonymous Liberal Says:
August 17th, 2006 at 5:36 pm
I agree with Ryan, I think the judge reached the right result for the wrong reasons. I don’t think it was a nakedly political decision, though. I suspect the merits of the case just weren’t very well litigated by the government. They focused all their fire on the state secrets and standing arguments. So once the judge got passed that hurdle, she was likely faced with a ton of arguments by the ACLU and very little by the government. As a result, her opinion is somewhat convoluted and focuses on the weaker arguments that she didn’t even need to reach.
5 Fred Says:
August 17th, 2006 at 7:39 pm
According to the AP:

“….The ACLU filed the lawsuit in January on behalf of journalists, scholars and lawyers who say the program has made it difficult for them to do their jobs. They believe many of their overseas contacts are likely targets of the program, which monitors international phone calls and e-mails to or from the U.S. involving people the government suspects have terrorist links….”
6 peter Says:
August 17th, 2006 at 9:18 pm
“There is no First or Fourth Amendment violation here:”

from the fourth amendment: “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

No violation?
7 Anonymous Liberal Says:
August 17th, 2006 at 9:34 pm
No violation?

Peter, this is a common misconception about the Fourth Amendment. There are two clauses in the 4th amendment. The first applies to all searches. It just requires reasonability. The second clause, which you quote, only applies to warrants (it requires them to be issued only upon probable cause). There are all sorts of searches that don’t require a warrant but are nevertheless reasonable (and therefore constitutional). For instance, no warrant is required when there are exigent circumstances, or when you are checking at a border, etc.

The question of whether warrants are required for national security related surveillance was specifically left open by the Supreme Court. That’s why FISA was passed. It’s not at all clear that this program violates the Fourth Amendent (there are decent arguments on both sides). What is clear is that the program violates FISA, and that the president does not have the authority to violate FISA. That’s what the opinion should have focused on. Instead the judge reached the unnecessary (and more difficult) 4th amendment question first. It’s a bizarre opinion.
8 peter Says:
August 18th, 2006 at 11:28 am
You are absolutely correct that many searches do not require warrants (customs searches, hot pursuit, clear and present danger, etc.). However, what these exceptions all have in common is the impracticality of obtaining a warrant. If a cop stops a driver and the car reeks of Jack Daniels, you can’t expect him to find a judge before he can look through the car or require a breathalyzer (which is considered a form of search).

FISA recognizes that the exigencies of surveillance sometimes require immediate action, so there is a 72 hour grace period to obtain a warrant. I’m not a constitutional scholar, nor do I play one on television, but it seems to me that the Fourth Amendment issues which prevent the government from warrantless searches elsewhere would also apply to national security searches.
9 Ryan Bonneville Says:
August 18th, 2006 at 12:35 pm
Peter, what I’m relying (sensibly, I think) is that warrants aren’t required for border searches. They aren’t even required for booting up someone’s computer and searching it for contraband. Given that, and given also that the NSA program targets phone calls coming into or going out of the U.S., I don’t think there’s a lot of room to invoke the Fourth Amendment. You could do it, but it would be a huge stretch. And, as Anon. Lib. says, it would be unnecessary even for those of you who see a Fourth Amendment problem.
10 peter Says:
August 19th, 2006 at 8:24 am
Warrants aren’t required for border searches because it is impractical to have judges at every border crossing to authorize searches. Ditto for traffic stops, airport check-in, turnstiles at the Superbowl, etc.

However, there are judges who are available to issue warrants for wiretaps (i.e., the FISA court). So I don’t think these exceptions are relevant here.

I also don’t think the fact that the calls are international is relevant, as half of the call takes place on American soil. I don’t see why that should be any different than when both sides of the call are in the US.