NSA Program Ruled Illegal
The big news of the day is that a federal judge in Detroit, Judge Anna Diggs Taylor, has ruled that the NSA program is illegal and issued an injunction to halt it. Think Progress has all the latest information, plus a link to the opinion and the text of the accompanying injunction.
This is, of course, very good news, and something that was bound to happen sooner or later. The administration's legal position on this issue is simply untenable. But I see a few storm clouds on the horizon. First, this opinion--and particularly the injunction--may prompt the White House to fast-track the pernicious Specter legislation so as not to be faced with the prospect of defying a court order. If so, I hope the bill's opponents are ready for a battle royale and prepared to filibuster if necessary.
The second thing that troubles me is the opinion itself. I just finished reading through it, and I've got to be honest, it's not that impressive. Taylor reaches the right conclusion--that the program is illegal--but her reasoning is a little muddled. I think her handling of the government's state secrets and standing objections is solid and defensible, but when she gets to the merits, it gets a little confusing. She correctly concludes that FISA forbids warrantless surveillance and that the AUMF does not supersede FISA. But she then concludes, with little in the way of explanation, that in addition to violating FISA, the program "obviously" violates the Fourth Amendment as well.
I think a case can be made that the program violates the Fourth Amendment, but that's a much closer call, and on that point, the government does have some case law it can point to, none of which Taylor addresses in the opinion. Stranger still, she concludes that because the program violates the Fourth Amendment--and the president does not have the power to violate the Fourth Amendment--she need not decide whether the president has the inherent authority to violate FISA (i.e. whether FISA is an unconstitutional infringement on executive authority).
The odd result is that the most important issue raised by the NSA program--the extent of the president's powers under article II--is not really addressed by the opinion, at least squarely (though it is pretty clear from the dicta what Taylor thinks about that argument).
I fear that Taylor's odd, and frankly unnecessary, handling of the Fourth Amendment issue will provide critics with ammunition to attack this ruling. She could have avoided the Fourth Amendment question altogether by simply holding that FISA is constitutional--which she clearly believes.
It's also worth noting that the opinion doesn't appear to cite Hamdan at all, which may have to do with the timing of the briefing and argument of this case.
Anyway, more to come tonight/tomorrow.
UPDATE: Glenn Greenwald has some good snap analysis here.
UPDATE II: As Glenn points out in the post linked to above, the Specter legislation, even if passed, would not be enough to render this ruling moot. Because Taylor found the program to violate the Fourth and First Amendments, no legislation can render it legal.
The problem, however, is that Judge Taylor's assertion that the program violates the First and Fourth Amendments isn't backed up by any real analysis or case law. She just kind of asserts it as if it's self-evidently true. I think this aspect of her opinion is incredibly vulnerable on appeal.
This is, of course, very good news, and something that was bound to happen sooner or later. The administration's legal position on this issue is simply untenable. But I see a few storm clouds on the horizon. First, this opinion--and particularly the injunction--may prompt the White House to fast-track the pernicious Specter legislation so as not to be faced with the prospect of defying a court order. If so, I hope the bill's opponents are ready for a battle royale and prepared to filibuster if necessary.
The second thing that troubles me is the opinion itself. I just finished reading through it, and I've got to be honest, it's not that impressive. Taylor reaches the right conclusion--that the program is illegal--but her reasoning is a little muddled. I think her handling of the government's state secrets and standing objections is solid and defensible, but when she gets to the merits, it gets a little confusing. She correctly concludes that FISA forbids warrantless surveillance and that the AUMF does not supersede FISA. But she then concludes, with little in the way of explanation, that in addition to violating FISA, the program "obviously" violates the Fourth Amendment as well.
I think a case can be made that the program violates the Fourth Amendment, but that's a much closer call, and on that point, the government does have some case law it can point to, none of which Taylor addresses in the opinion. Stranger still, she concludes that because the program violates the Fourth Amendment--and the president does not have the power to violate the Fourth Amendment--she need not decide whether the president has the inherent authority to violate FISA (i.e. whether FISA is an unconstitutional infringement on executive authority).
The odd result is that the most important issue raised by the NSA program--the extent of the president's powers under article II--is not really addressed by the opinion, at least squarely (though it is pretty clear from the dicta what Taylor thinks about that argument).
I fear that Taylor's odd, and frankly unnecessary, handling of the Fourth Amendment issue will provide critics with ammunition to attack this ruling. She could have avoided the Fourth Amendment question altogether by simply holding that FISA is constitutional--which she clearly believes.
It's also worth noting that the opinion doesn't appear to cite Hamdan at all, which may have to do with the timing of the briefing and argument of this case.
Anyway, more to come tonight/tomorrow.
UPDATE: Glenn Greenwald has some good snap analysis here.
UPDATE II: As Glenn points out in the post linked to above, the Specter legislation, even if passed, would not be enough to render this ruling moot. Because Taylor found the program to violate the Fourth and First Amendments, no legislation can render it legal.
The problem, however, is that Judge Taylor's assertion that the program violates the First and Fourth Amendments isn't backed up by any real analysis or case law. She just kind of asserts it as if it's self-evidently true. I think this aspect of her opinion is incredibly vulnerable on appeal.
7 Comments:
My sense is that cases like this are usually accompanied by thousands of pages of arguments from both sides. If I'm right about that, and the decision is weak, does that mean that the ACLU et al. didn't provide good enough arguments or that Judge Diggs Taylor just didn't bother to include them? Is there some third alternative?
It seems to me like an appeal would be much less likely if she had simply buried all of the government's arguments, and like she should have had the resources (in the form of amicus briefs and so on) to do so. Am I missing something? Do federal judges not have the staff to put something like that together?
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Dave, I'm similarly perplexed. Federal district judges generally have at least two clerks. She's the chief judge, so I would think she'd have some top quality clerks. She had to have know this opinion would garner instant headlines and be picked apart in the media and legal academic world. Yet the opinion is remarkably minimalist in its analysis. It's mainly just a collection of quotes (and not even the most relevant ones) accompanied by some fairly summary statements. I don't understand it.
All the judge had to do was follow the basic sketch of the legal memos drafted by Marty Lederman and his fellow professors. Had she done that, the opinion would have been unassailable and there would have been no need to get to the 4th amendment issue.
Oh well, whatever she wrote was going to be appealled. At least she teed up all these issues for appeal.
amazing - glenn went back and forth for weeks that (1) even republicans are standing up to chimpy (2) where is the republican outrage (3)arlen was gonna save us, (4) arlen is a bad guy.... ad nauseum
and now you are doing the circle jerk thing....
Guess will have to wait to see what our boy wonder has to say tomorrow, just like the MSM, political analysts are made by those that parade psuedo-intellectual crap repeatedly before us while fawning about how great the feces tastes.
This is only round 1 - they got away with 2 stolen presidential elections, stole key races in 2002, and are setting us up for a major distraction and bamboozlement after the stolen races this fall - the Social Security Scam.
At the very least, they enabled 911 by "standing down," and the facts indicate that at some level, the administration was likely actively involved with it.
They get away with treason, war crimes, and crimes against humanity....
and you think this judge is going to stop them?
It is disappointing that the judge did not elaborate and build a foundation to support her claims about the first and fourth amendment, however.
Yes. It is obviously a conspiracy driven by the champagne industry.
Or possibly the cork cartel.
To Disenchanted Dave,
No, ususally most courts have page limits as far as briefing is concerned so it's doubtful (even if they filed motions to exceed page limits) that there were thousands of pages of briefs regarding this subject.
As a supporter of the NSA program, and a believer in its legality, I could not have drafted a more delightful opinion from which to take an appeal. As soon as this judge was selected, the outcome was of course predetermined. When the current stay lapses on September 7, the Sixth Circuit will enter a stay pending the appeal, and this very effective program will continue unabated.
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