NSA Wiretapping Program Ruled Unconstitutional

A federal judge in Detroit has ruled that the NSA’s Terrorist Surveillance Program (TSP) violates the Fourth Amendment. The judge in this case, US District Court Judge Anna Diggs Taylor, argues that the state secrets doctrine does not apply in this case, and that the individuals suing the government (a list that includes the ACLU, Hoover Institution scholar Larry Diamond, and Christopher Hitchens) do have standing to bring suit against the government, despite the fact that they cannot prove that they were targeted as part of the TSP.

Judge Taylor argued:

These cases constitute acknowledgment that substantial burdens upon a plaintiff’s professional activities are an injury sufficient to support standing. Defendants ignore the significant, concrete injuries which Plaintiffs continue to experience from Defendants’ illegal monitoring of their telephone conversations and email communications. Plaintiffs undeniably have cited to distinct, palpable, and substantial injuries that have resulted from the TSP.

This court finds that the injuries alleged by Plaintiffs are “concrete and particularized”, and not “abstract or conjectural.” The TSP is not hypothetical, it is an actual surveillance program that was admittedly instituted after September 11, 2001, and has been reauthorized by the President more than thirty times since the attacks. The President has, moreover, emphasized that he intends to continue to reauthorize the TSP indefinitely. Further, the court need not speculate upon the kind of activity the Plaintiffs want to engage in – they want to engage in conversations with individuals abroad without fear that their First Amendment rights are being infringed upon. Therefore, this court concludes that Plaintiffs have satisfied the requirement of alleging “actual or threatened injury” as a result of Defendants’ conduct.

However, there still is no evidence that any such injury has occurred. So far there’s been no evidence that any of the individuals named in the suit have been effected directly by the TSP. Any release of such information would undoubtedly violate the State Secrets doctrine. While the plaintiffs in this case claim that the TSP creates a “chilling effect” that hampers their abilities to communicate with contacts and clients, the argument that it truly does seems weak to me. For instance, we know that countries like Pakistan, Egypt, Saudi Arabia, and even some European countries have similar or more stringent programs for the interception of terrorist communications. How does anyone know that one of those countries are also listening in? The question is standing is not nearly so clear as Judge Taylor makes it out to be.

It is clear that Judge Taylor has an ulterior motive for her grant of judicial standing:

Although this court is persuaded that Plaintiffs have alleged sufficient injury to establish standing, 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.

Which to me doesn’t sound like Judge Taylor is proceeding with the facts and drawing conclusions based on the legal issues at hand: instead it seems she began with the a priori assumption that the TSP does violate the Fourth Amendment and the doctrine of separation of power and proceeded from there. The Supreme Court is unlikely to approach the issue with the same level of bias.

Taylor’s arguments on the critical question of the legality of the program under the Fourth Amendment are extremely weak – consisting largely of broad proclamations that the program is in violation of the principle banning unreasonable searches and seizures. As Eugene Volokh notes, the decision ignores the border search exemption, and indeed the case most frequently cited (United States v. United States District Court, 407 U.S. 297 (1972) – the Keith case) does not create such a clear and obvious condemnation of the TSP as Judge Taylor asserts. Both Keith and Katz v. United States 389 U.S. 347 (1967) leave room for the President to authorize warrantless wiretaps if required by the interests of national security. For instance, in Katz, Justice White argued in his concurring opinion that:

Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. We should not require the warrant procedure and the magistrate’s judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.

The Constitution names the President of the United States as the Commander in Chief of the nation’s armed forces. The Constitution gives the President wide latitude to carry out that power – including the ability to suspend habeas corpus if an emergency requires it. The President asked for an Authorization of Military Force against those who committed the atrocities on September 11, 2001, and Congress granted him that. The idea that domestic wiretaps would not be a part of such an authorization seems to be groundless – we knew that the 9/11 hijackers were operating in the United States before the attacks and that an intercept of their communications with al-Qaeda leaders like Ramzi bin-al-Shiebh would have prevented the attacks. Legally, Judge Taylor’s line of argumentation seems to be based on an a priori assumption of illegality which is not borne out through the evidence in her memorandum. It is likely that the Supreme Court will see things differently, and it seems inevitable that this case will be heard by the Supreme Court.

Politically, this is likely to be a win for the President, as quixotic as that may sound. In an election year in which the Republicans are once again trying to paint the Democratic Party as a party of weaknesses on issues of national security, having an “activist judge” strike down a key anti-terrorism program just a week after the disruption of a major terrorist plot gives the GOP plenty of political ammo in which to accuse the Democrats of weaknesses on national security. It may put the White House on defense legally, but politically it only helps their attempts to go on offense.

UPDATE: The Volokh Conspiracy has more analysis here. They find that Judge Taylor’s arguments on the First Amendment claim are as long on rhetoric and short on concrete analysis as the Fourth Amendment argumentation. Furthermore, the much stronger arguments in regards to the TSP’s legality under FISA rest on Judge Taylor’s a priori arguments on the First and Fourth Amendments. Despite the fact that the FISA argument is likely the strongest legal argument, Judge Taylor doesn’t give it sufficient legal ground to stand on its own.