In a ruling that I could have predicted last December, a federal judge orders halt to the NSA’s illegal domestic wiretapping:
A federal judge in Detroit ordered a halt to the National Security Agency’s warrantless surveillance program, ruling for the first time that the controversial effort ordered by President Bush was unconstitutional.
U.S. District Judge Anna Diggs Taylor wrote in a strongly-worded 43-page opinion that the NSA wiretapping program violates privacy and free-speech rights and the constitutional separation of powers between the three branches of government. She also found that it violates a 1978 law set up to oversee clandestine surveillance.
The ruling first deals with the claims of state secrets privilege, the claim that the case cannot proceed without national security secrets being made public. The group of plaintiffs had simply asserted their claims about illegal surveillance on the basis of public statements, and the court found that the defense of those statements had also been advanced publicly, and so “the court finds Defendants’ argument that they cannot defend this case without the use of classified information to be disingenuous and without merit.”
Judge Taylor also found that the plaintiffs had suffered actual harm as a result of the program, that reporters’ and researchers’ sources and attorney’s clients had refused to speak with them over the phone, requiring expensive travel and undermining ongoing 1st amendment protected research and harming the rights of people to obtain effective counsel.
But Taylor continues by explaining that, even if that were not true:
it is important to note that if the court were to deny standing based on the unsubstantiated minor distinctions drawn by Defendants, 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.
She goes on to cite Hamdi v. Rumsfeld (the 2004 case which had been advanced as a partial defense of the program), and Clinton v. Jones (!).
“Indeed,” she continues, “as the perceived need for secrecy has apparently required that no person be notified that he is aggrieved by the activity,” and no apparent actions have been taken as a result of it, “no victim in America would be given standing to challenge this or any other unconstitutional activity, according to the Government.”
She found that the program violated FISA and the criminal wiretapping laws, and that these violations crossed into constitutional territory. The Fourth Amendment, she reminds us “requires prior warrants for any reasonable search, based upon prior-existing probable cause, as well as particularity as to persons, places, and things, and the interposition of a neutral magistrate between Executive branch enforcement officers and citizens.” She held that the program is “obviously in violation of the 4th amendment.”
After reviewing the state of the law on separation of powers, including Youngstown and Clinton v. Jones (again), she found that “the separation of powers doctrine has been violated.” The AUMF defense did not sway her, since it is general and the specifics of FISA must govern the generality of that resolution. Even if the resolution authorizing force did replace FISA “Defendants have violated the Constitutional rights of their citizens including the First Amendment, Fourth Amendment, and the Separation of Powers doctrine.”
The Court issued a permanent injunction against the government, holding that it is “is permanently enjoined from directly or indirectly utilizing the Terrorist Surveillance Program (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 and Title III.”
I’m told that the President, when informed, went back to playing with toy soldiers.