I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Thursday, August 17, 2006

Federal court finds warrantless eavesdropping unconstitutional, enjoins the program

(updated multiple times)

I do not yet know anything more than what is in this AP article, but if it is accurate, it is extraordinary news -- extraordinarily good news -- on every level. I will update this post continuously as I get more information, particularly once I get the opinion:

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.

This is the case brought by the ACLU against the Bush administration directly. Some background on the case is here, where I previously noted that it seemed the judge was, at the very least, intent on scrutinizing, rather than blindly accepting, the Bush administration's claims. This also means, presumably, that this is now the second consecutive federal court to reject the Bush administration's invocation of the "state secrets" doctrine as a means of avoiding judicial review.

This is huge news, obviously. More to follow.

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I went to the CNN website to see if they had anything on this decision, and saw a bright red box at the top with urgent "BREAKING NEWS" language in it, so I naturally assumed they were reporting it. Then I read this inside the flamboyant box:

BREAKING NEWS - Boulder DA: Ramsey murder suspect John Karr started working as second grade teacher in Thailand Tuesday. Watch live on CNN Pipeline now.

I have no doubt that infinitely more coverage will be devoted to that issue on every news program today than on the fact that a federal court just ruled that the President's warrantless eavesdropping program is unconstitutional and, perhaps, illegal.

* * * *

The opinion is here (.pdf); the injunction order is here (.pdf). I will have analysis on this shortly.

* * * *

I have read the opinion. Here is my immediate analysis of it. It is a very strong opinion in some places, weak in others, but is rather straightforward -- and sometimes eloquent -- in its almost always unequivocal rejection of the Bush administration's arguments:

First, the court rejected the administration's assertion of the "state secrets" doctrine with regard to the NSA eavesdropping program on the ground that the program has already been publicly confirmed by the administration, and that all of the known facts necessary to rule on the plaintiffs' claims -- namely, that the administration is eavesdropping without warrants -- are already publicly known. The court adopted the reasoning of Judge Walker who, as noted above, rejected the administration's invocation of this doctrine on the same ground.

(The court here did, however, grant the administration's motion to dismiss the part of the case challenging the constitutionality of the data-mining program, on the ground that it has not yet been confirmed, and litigation of its legality would therefore require disclosure of state secrets).

Second, the court ruled that the plaintiffs have standing to challenge the legality of the NSA program even though they cannot prove they have been eavesdropped on, because they have suffered actual harm merely from knowing that the Government is eavesdropping. They all allege that they have extensive communications with the Middle East by telephone and fear that the administration is listening in without a warrant. Some are attorneys who fear the administration is eavesdropping on their conversations with their clients and witnesses, and they allege that these clients and witnesses have ceased communicating with them openly as a result.

Thus, the court held that these plaintiffs are suffering actual harm in their ability to carry out their professional duties as a result of the administration's warrantless eavesdropping program. That actual harm confers on them standing to challenge the legality of the program. The court also emphasized, in an excellent section I will quote shortly, that it is vital to our democracy that the administration's conduct not remain beyond the reach of judicial scrutiny.

Third, the court ruled -- rather emphatically and without much doubt -- that warrantless eavesdropping violates the Fourth Amendment's prohibition on unreasonable searches and seizures (generally speaking, searches undertaken in the absence of a probable cause warrant). Citing the 1972 Supreme Court decision in the Keith case (more on that here) -- which held that warrantless eavesdropping is unconstitutional in the context of investigating domestic terrorist groups -- the court held (admittedly without much reasoning or even explicit arguments) that the same reasoning applies to make warrantless eavesdropping unconstitutional in the context of investigating international terrorist groups.

Fourth, the court ruled independently -- again, without all that much reasoning -- that the NSA program violates the plaintiffs' First Amendment rights, apparently because it chills (deters) their free expression. Since the plaintiffs know the Government can eavesdrop without warrants on conversations of those groups and individuals deemed "subversive," the program abridges free expression in a way that the First Amendment prohibits.

Fifth, the court relied upon Youngstown to hold that the Executive's powers in the national security area do not entitle him to act beyond the law or the Constitution, and that courts are empowered under our Constitution to enjoin and restrict the exercise even of national security powers, even in times of war, when the President's conduct violates the law or the Constitution.

Sixth, the court swiftly and dismissively rejected the administration's claim that the AUMF constitutes authorization to eavesdrop in violation of FISA, noting that FISA is an extremely specific statute while the AUMF says nothing about eavesdropping. In any event, as the court noted, since the court found warrantless eavesdropping unconstitutional, Congress could not authorize warrantless eavesdropping by statute.

Seventh, the court made its scorn quite clear for the administration's Yoo theory of executive power because, as the court put it, "there are no hereditary kings in America and no powers not created by the Constitution." Citing Youngstown again, the court made clear that even in time of war, and even with regard to the President's Commander-in-Chief powers, the President is subject to constitutional restrictions -- a proposition long unquestioned in our system of government until the Bush administration began inventing radical theories of executive power.

Finally, and really quite extraordinarily, the court (a) declared the NSA program to be in violation of FISA, the First Amendment and Fourth Amendment and (b) issued a permanent injunction enjoining the Bush administration from continuing to eavesdrop in violation of FISA.

This is not the most scholarly opinion ever. It has argumentative holes in it in several important places. But it is correct in its result and it is an enormous victory for the rule of law. It took real courage for Judge Diggs Taylor to issue this Opinion and Order -- it is hard to overstate how much courage it took. It will obviously be appealed. But as of right now, it is illegal, according to this federal court, for the Bush administration to continue to implement its "Terrorist Surveillance Program," and since it is grounded in constitutional conclusions, nothing -- such as Arlen Specter's dreaded bill -- could change that.

* * * *

I've heard reports that the reliably vile Rush Limbaugh is already attacking the judge personally -- she's a Carter appointee, etc. First, the judge who rejected the Bush administration's attempt to have the California/AT&T litigation dismissed (Judge Vaughn Walker) -- on whose reasoning Judge Diggs Taylor relied -- is a Bush 41 appointee. Secondly, the Judge's background is extremely impressive, making it quite hard, even for the likes of Rush Limbaugh, to demonize her or demean her abilities:

In 1979, Anna Diggs Taylor became the first black woman judge to be appointed to the United States District Court for the Eastern District of Michigan. Nineteen years later, she became the first black woman Chief Judge for that circuit as well.

Taylor had great difficulty obtaining her first job as an attorney for the Office of Solicitor for the U.S. Department of Labor, despite graduating form the prestigious Yale Law School in 1957. Very few opportunities existed for a black woman in law at this time. In 1961, Taylor relocated from the Washington D.C. area to Detroit, Michigan. Here she was involved in both public and private practice until her appointment to the U.S. District Court for the Eastern District of Michigan, on which she continues to serve. Taylor’s position has enabled her to open doors for other women and minorities to pursue and achieve their dreams. She strives for gender and racial equality in the law and currently serves on the Joint Steering Committee of the Gender and Racial Ethnic Fairness Task Forces for the Sixth Circuit.

One can only fathom the personal attacks that will be spewing forth against her.

* * * *

According to the ACLU, the Justice Department has notified them that they intend to ask the District Court Judge to stay her decision pending appeal to the Sixth Circuit (meaning the injunction would not apply immediately, but would only be activated if the decision were affirmed on appeal). Typically, with a decision of this magnitude -- particularly one that changes, rather than preserves the status quo -- a court would stay the decision. I was surprised that she did not stay it on her own (perhaps the Government did not ask).

Ordinarily, I would be inclined to think that it was almost automatic that the decision would be stayed, but given how dismissive she was of the administration's arguments -- and how unequivocal were her conclusions that this program violates the constitutional rights of Americans -- I wouldn't be all that shocked if she refused to (the administration could still then ask the Sixth Circuit Court of Appeals to stay the Order).

* * * * *

Let's see what our friends in the Bush follower crowd are saying. Legal scholar Jeff Goldstein immediately puts the spotlight on the Judge personally, and highlights "that she was married to Michigan Democratic Representative (1955-1980) Charles C Diggs, Jr. (divorced 1971) and S Martin Taylor (active in both the Coleman Young and Jimmy Carter campaigns)" and that "was the first African-American woman appointed to a federal judgeship in Michigan . . . . Taylor has used her positions to advance civil rights throughout the United States." He then announces that he "think(s) this ruling will be overturned on appeal." And, needless to say, included in the first 10 comments is a plea that the President defy the order, along with a call for the judge to be drowned.

Ace of Spades is so beside himself that he seems sadly deflated; he merely dutifully launches the two standard Bush smears at the Judge, but without much feeling -- he doubts she "takes terrorism seriously" and he "question(s) her sanity." Writing on Michelle Malkin's blog, Mary Katherine Ham also focuses on the Judge's background, quoting a Detroit Free Press profile which describes her as "a liberal with Democratic roots and defended civil-rights workers in the South in the 1960s." The article (and Ham) point out, however, that "people who know her say she will follow the law -- not her politics -- in deciding the case... " And this is what National Review Corner readers learned about this decision: It's a "Terrorist-Friendly ruling" from a "Carter appointee."

So, so far we have - (1) the Judge was appointed by Jimmy Carter; (2) the Judge is African-American and works on "civil rights" matters; (3) she is insane; (4) she does not take terrorism seriously; (5) this is a victory for the terrorists; (6) President Bush should defy the Order. That's a predictable enough beginning, but the smear machine is going to have to work a little harder, because that is not all that impressive of an attack so far. I recommend the Free Press profile -- read that and decide if her abilities and fairness can be legitimately demonized.

* * * *

More pro-Bush reaction is compiled here, including this from Jawa Report ("lets hope the first bomb that comes here is dropped on this judges head") and this from Debbie Schussel ("She seems to hate America and fairness almost as much as the Plaintiffs do"). And some nice race-based smearing can be found by Gateway Pundit here (her husband was a Congressman whose "district included downtown Detroit and some of the city's poorest neighborhoods. He was the first chairman of the Congressional black Caucus"). That's really relevant.

* * * *

Let's resoundingly clear up two widely disseminated misconceptions, the first of which is being quite deliberately tossed around:

(1) Even with this Order, the Bush administration is free to continue to do all the eavesdropping on terrorists they want to do. They just have to do so with approval of the FISA court -- just like all administrations have done since 1978, just as the law requires, and just as they did when eavesdropping as part of the surveillance they undertook on the U.K. terror plot.

(2) The court's ruling that warrantless eavesdropping violates the Fourth and First Amendments clearly means (although the decision is far from a model of clarity) that Congress cannot authorize warrantless eavesdropping with legislation, which would preclude enforcement of the Specter bill.

This is clearest when the court rejects the administration's argument that the AUMF implicitly authorized violations of FISA. The court ruled that: (a) the AUMF cannot be read to amend FISA, but that (b) even if it could be so read, it would not matter, because Congress cannot authorize an unconstitutional program:

The AUMF Resolution, if indeed it is construed as replacing FISA, gives no support to Defendants here. Even if that Resolution superceded all other statutory law, Defendants have violated the constitutional rights of their citizens.

Op. at 39 (emphasis added). If Congress is not empowered to authorize this program through the AUMF (because the program is unconstitutional), then there is no good argument as to why the Specter bill can.

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