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Thursday, August 17, 2006

Judge StrikesDown NSA Warrantless Surveillance

In case you haven't heard, Federal District Court Judge Anna Diggs Taylor of Detroit (which lies in the Sixth Circuit) found the Bush Administration's use of warrantless surveillance by the NSA to be unconstitutional as well as a violation of the President's statutory authority under the FISA law. Judge Taylor has permanently enjoined the use of the NSA program.

This decision (available here; HT: ThinkProgress) is both potentially momentous and certain to be appealed, all the way to the Supreme Court, by the government and possibly also the plaintiffs (as to a part of the decision that found the government's alleged data mining activities nonjusticiable under the state secrets privilege).

I'm no lawyer, but I'm reading the decision with great interest, while also checking
law blogs for reaction by various experts. (One moderately lengthy reaction, which I haven't yet had time to read in any detail, is by Yale law prof
Jack Balkin

Without having finsihed the opinion, I'm a bit surprised that Judge Taylor found the program unconstitutional---reading various posts at law blogs has given me the clear sense that Fourth Amendment criticisms of the NSA program are pretty tenuous; this is the first time I can remember hearing anyone seriously raise the First Amendment, as Judge Taylor does in her opinion. By contrast, the program's essentially self-evident violation of FISA makes Judge Taylor's partial reliance on FISA seem obvious here. A bunch of people have written about the likely effect of the Supreme Court's Hamdan decision (which affirmed the logic of Justice Jackson's concurrence in the 1952 Youngstown case, a concurrence that as I understand it essentially says the President has no genearl authority to violate duly enacted statutes in national security matters) -- see Balkin's blog Balkinization for examples.

The most notable thing I've read so far is Judge Taylor's enumeration of various ways -- in public statements, press releases, the DOJ's publicly released white paper, and both classified and unclassified filings in the case in front of Judge Taylor -- in which the government has sought to defend the legality of the NSA program, followed by her conclusive statement that
the court finds Defendants' argument that they cannot defend this case without the use of classified information to be disingenuous and without merit.
Ouch. More to come.

Update: Jack Balkin's view of the decision is not very positive:
It is quite clear that the government will appeal this opinion, and because the court's opinion, quite frankly, has so many holes in it, it is also clear to me that the plaintiffs will have to relitigate the entire matter before the circuit court, and possibly the Supreme Court. The reasons that the court below has given are just not good enough. This is just the opening shot in what promises to be a long battle.
Balkin's post shows considerable skepticism about Judge Taylor's 4th amendment reasoning but credits (a bit) her 1st amendment argument (referring to it at one point as novel while also pointing out that a secret program like the NSA's by hypothesis could not involve the requisite chilling effect to violate the 1st).

He also expresses considerable disappointment in Judge Taylor's apparent failure to cite Hamdan or address the strongest interpretation of the government's arguments regarding the AUMF. Balkin's point is not that the government is right -- he's been quite clear over these last months about why it is wrong -- but rather that today's decision does a poor job of explaining why the government is, in fact, wrong.


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