Court Strikes Down NSA Program

by hilzoy

From the Washington Post:

"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 as well as the separation of powers enshrined in the Constitution.

"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."

Here are the decision (pdf) and the injunction (pdf) (h/t ThinkProgress.) The injunction reads in part:

"IT IS HEREBY ORDERED that Defendants, its agents, employees, representatives, and any other persons or entities in active concert or participation with Defendants, are permanently enjoined from directly or indirectly utilizing the Terrorist Surveillance Program (hereinafter “TSP”) in any way, including, but not limited to, conducting warrantless wiretaps of telephone and internet communications, in contravention of the Foreign Intelligence Surveillance Act (hereinafter “FISA”) and Title III;

IT IS FURTHER ORDERED AND DECLARED that the TSP violates the Separation of Powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution, the FISA and Title III"

I have read the decision, and I think it's pretty scathing, in that understated way that judges have. For instance, consider this passage:

"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."

I am not a lawyer, so I am open to correction, but I read this passage, and especially its last paragraph (which I have quoted in its entirety, and which is repeated at least three more times elsewhere in the opinion), as the understated judicial version of fury and contempt.

Likewise, here is the conclusion of the opinion:

"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.

"

God save this honorable Court.

Comments

[Charles Bird]

Turn the whole thing into an alleged blog counting contest to support your opinion.

"Blog counting" has nothing to do with it, dm. The ones I mentioned well explained why Taylor's opinion will not hold water. My point was that there is bipartisan agreement on the low quality of her opinion. You may be satisfied that substandard judicial reasoning doesn't matter because it got to the "right" answer. Or in other words, the end is more important than the means. Predictably, Greenwald thinks so.

[liberal japonicus]

Charles,
Your view concerning evidence has often been disagreed with here (I think the discussion of Amnesty stands as the ur-example) But when you say 'the blogs I mentioned' when you don't tell us which blogs those are is pretty weak tea. We have no idea what points you find convincing, so pointing out that this is 'blog counting' is really the only point that can be made.

Greenwald has "predictably" pointed to Laurence Tribe's email to Adam Litvak, which argues that in this case, the end does trump the means. I assume that you don't always believe that the means are more important than the end. The question is why you think that this is not the case here.

[Charles Bird]

But when you say 'the blogs I mentioned' when you don't tell us which blogs those are is pretty weak tea.

Such careless and inattentive reading, LJ. If you look again, you will find that I mentioned Balkin, several at Volokh and that I linked to a dKos diary. These are not obscure, unknown blogs, so I trust that you and most others here are competent enough to find and read them.

As for means and ends, it seems to me that the judicial process is just as--and perhaps more--important as the judicial result. Due process is a fairly important principle, no? In other areas, of course, the relationship between result and process will vary, as many in the sporting world will attest.