Federal Judge Grants Injunction on NSA Surveillance

Ed, do you have any idea why she didn't reference Hamdan vs Rumsfeld at all in the ruling? As far as I can tell she didn't need to, since she was able to declare the programme illegal on about six different bases, but the Supremes' reasoning in that case directly addressed and demolished the administration's arguments for the warrantless wiretapping case.

See Jack Balkin's analysis of the opinion here:

http://balkin.blogspot.com/2006/08/federal-court-strikes-down-nsa.html

He's not a fan (although agreeing with the outcome). I tend to agree. Hamden is clearly on point here, so why was it never mentioned? If I were a conspiracy theorist, I might almost think this decision is a straw man thrown up with the intention of allowing the Administration to grab the high ground.

Since individually it couldn't be proved that someone's phone has been tapped couldn't someone use a class-action type lawsuit on behalf of the United States citizens? Since the government has already shown to be doing this to somebody, class-action would include everybody by which logic would include the ones tapped.

Of course, I don't know a whole lot about law either.

We must always be mindful that "[w]hen the President takes official action, the Court has the authority to determine whether he has acted within the law." Clinton v. Jones, 520 U.S. 681, 703 (1997).

Heh. The cognitive dissonance may be a bit much for some of the wingnuts - using a Clinton judgement to knock down Bush's monarchism. Rule of law!

It's a perfect mobius strip of logic: we can't tell you who is surveilled under the law because of the state secrets privilege, and if you don't know who is surveilled you can't prove you have standing.

I just finished reading Catch-22, and this sentence would fit right in.

Ed, I think you are right: if the courts agree that the activity cannot be challenged, then it does give the president the authority and power to do anything in any context as long as it is draped in the mantle of state security. I suggest that the president establish a new police branch - let's call it the Secret State Police.

Ildayo wrote:

Since individually it couldn't be proved that someone's phone has been tapped couldn't someone use a class-action type lawsuit on behalf of the United States citizens? Since the government has already shown to be doing this to somebody, class-action would include everybody by which logic would include the ones tapped.

No, such cases are not allowed. They should be, but they're not. For that matter, I think Congress should be able to sue because the law is not being followed. Those cases aren't allowed either, unfortunately.

Since individually it couldn't be proved that someone's phone has been tapped couldn't someone use a class-action type lawsuit on behalf of the United States citizens? Since the government has already shown to be doing this to somebody, class-action would include everybody by which logic would include the ones tapped.

Of course, I don't know a whole lot about law either.

I know very little about the law either but while it is apparently impossible to sue the government in that fashion there are suits being pressed against the telecom companies that have been complicit in the scheme. Apparently the bush administration was trying to get them lumped together and heard in DC federal court, where the judges tend to be very sympathetic to the government position. The first part was approved - the cases have been lumped. But it was ruled that a Judge in San Francisco, who has already ruled to let this case go forward (the admin. claimed for them to go forward in hearing the case would jeopardize national security - the judge ruled that they had already admitted the existence of said program, so it couldn't hurt national security) and already has some investment in the case should hear it.

John Bambenek has already weighed in over at STACLU, and a more transparent soup of deceit and hogwash you will never see. I love the way he keeps harping on "overseas communications of terrorists" and "international calls", never once admitting that the point of the lawsuit was that Americans in the US were being illegally wiretapped. And he ends by claiming that First Amendment protections have been extended to terrorists by Judge Taylor's rulings. Good gravy... where does Jay Stephenson get these people?

And... if any of your uber-patriotic wing-nut friends want to cheer when and if this ruling gets overturned, just ask them if it will still be OK with them during the 1st Sharpton Administration.

Yeah. "Explain to me again why, if Hillary Clinton wins in 2008, she should have the ability to listen in on your phone calls, and neither congress nor the courts can do anything to stop it?"

It was never the intent of the Framers to give the President such unfettered control...
The three separate branches of government were developed as a check and balance for one another.

Precisely. Which is why Congress has the authority to remove a President from office.

Hear that, Congress??

I think that there is a chance if, 1. It can be shown that the information revieled by the government about the program was enough to cause damages. This means that if there was actually spying or not it does not matter on the 1st ammendment challange. 2. This somehow shifts the burden to the other side for the feds to prove that there was no wiretaping, which would not be allowed because of the state secret issue. This is a flimsy rope for standing, but I figure there is some hope.

And I am a really pathetic law student, just for context.

For that matter, I think Congress should be able to sue because the law is not being followed.

It's called impeachment. But don't hold your breath, no one has given Bush a BJ for him to lie about.

I've been listening to a local radio talk show host (John Ziegler, who claims to be a libertarian) bellyache about this decision. It's pretty nauseating. The usual right wing bullshit about how this is good for the terrorists, this judge is "extremely liberal", there is no right to privacy in the Constitution and that since the govt. was only listening to what people say their First Amendment rights were not violated.

My first response to any dumb-ass who says that there is no right to privacy enumerated in the Constitution is: OK fine, the camera goes in your bedroom first.

And who the hell would feel at all constrained in their, private, speech if they knew that Big Brother might be listening to every word?

Say Mr. Ziegler you wouldn't mind if we take all your phone conversations about, oh I don't know, your sex life, medical conditions, religious beliefs, whatever, and pump them out over a loudspeaker to a room full of strangers would you? No, of course you wouldn't.

Moron.

Frito:

Unfortunately, the 1st Amendment argument is the weakest offerred by Judge Taylor, the problem being there is no right to foreign travel or contact guarranteed in the Constitution, and, presumably, one end of these calls is outside the US. So if that is the basis for justiciability, the case falls flat rather quickly.

I assume that Plaintiff's counsel did not have a role in drafting the decision. If they had, presumably they would have taken an approach based on Hamden (and hence on Youngstown Steel) that, as Congress had already preempted the arena by passing FISA, Executive branch power was at an ebb. In other words, it should have been dealt with as a separation of powers issue (and will be if upheld on appeal; since this is an appeal of a pretrial motion, de novo review is allowed on appeal).

I was a lousy law student, too. That really doesn't much matter once you're out in the real world.

Unfortunately, the 1st Amendment argument is the weakest offerred by Judge Taylor, the problem being there is no right to foreign travel or contact guarranteed in the Constitution...

Is there something in the Constiution that grants authority to the govt. to restrict foreign travel or contact?

No, but having a passport is considered a priviledge, not a right. By extension, business interests, contacts, etc fall into the same class.

"presumably, one end of these calls is outside the US."

That's a pretty big "presumably." In fact, all that the government requires (allegedly) is that the call be routed internationally. That might easily happen with a domestic phone call.

But what I actually believe is that, given how many lies have been repeatedly told by this administration (whose existence was first denied), and given the refusal of the administration to come clean about the program, is that the program is being used for any kind of surveillance that they want. If they "think" that a peace activist "might" be a "terrorist" at some future date, they will use the program to wiretap his phone.

Ed is absolutely correct that the administration cannot be allowed to perpetrate an unconstitutional program by using classification to prevent any injured party from having "standing" to challenge the law. That is the path to lawless executive branch behavior, and we are well down that path. From "breaking the law to wiretap" it's only a short hop to "breaking the law to seize property" and "breaking the law to detain people without habeas corpus". (Oh wait, Bush has already been doing those things, too.)

I have no patience for wingnuts who are making transparently weak arguments that you know they would never have made under Clinton.

Of course everyone is ignoring the great big elephant standing in the room. The only reason the government has for not obtaining wire tap warrants (which are granted essentially at request) is that they cannot identify who they want to wiretap. The obvious presumption is that the government is tapping everyone and then trying to identify the individual calls they want to examine more closely. But we can never find that out because the government's actions are not subject to review as long as they can claim national security.

Oh, and as to our rights - the government is not taking them away, they are just saving them for us. They have put them into a lockbox and they will bring them back out, all shiny and undamaged, just as soon as the war on terror is over.

"The government has already admitted that they are not following either the statutory or constitutional standards - end of story."

If the government believes it has the power to act outside of both, especially when Bush stated that president he believed he didn't need a court order to authorise matters like this, doesn't that define the US government as a dictatorship? (Assuming the definition I just looked up is correct)

[[Anna Diggs Taylor, come on down. You're the next contestant on Name That Activist Judge.]]

Deservedly so. Whether it's right or wrong, this opinion is a textbook example of judicial activism: a badly reasoned and badly written ruling that attempts to impose a single judge's biased opinion on the federal legal system. And yes, before anyone asks, I'd say the same if it had come from a consie judge. Proof? Just compare this bit of tripe to Judge Jones's ruling in the Dover case. He spent over a hundred and thirty pages carefully explaining his reasoning based on the evidence and existing caselaw, doing his very best to avoid even the appearance of impropriety or partisanship, all for a case that was legally open-and-shut. Except for the creationist nuts, every legal scholar who looked at the decision concluded it was legally sound based on existing Establishment Clause jurisprudence. Even those that disagreed with the conclusion agreed it was sound. By contrast, Taylor took a case that is not open-and-shut, that raises major constitutional issues, that must be handled with velvet gloves to avoid a legal and political firestorm ... and handwaved it aside with a summary judgement that ran only four pages and used language that clearly suggests a partisan bias. Summary judgement for a major constitutional crisis? Four pages for a case that has already generated millions of words in argument and commentary? It's ridiculous.

[[ In other words, they are arguing that the court can consider the constitutional and statutory questions based solely on facts already publicly admitted to, without ever needing to reveal any more information about the program. On that question, I think the judge is absolutely right.]]

Hogwash. "The facts already publicly admitted to" are incomplete. The administration has only acknowledged what was already reported by the press. Most information about the program remains classified. What honest and honorable judge would decide any case, much less such a major one, based on incomplete information?

[[ Does the FISA law allow warrantless wiretaps? The answer is no. Does the Constitution allow searches to take place without a showing of probable cause? Again, the answer is no. ]]

Did probable cause exist for the tapped conversations? The only conversations that were tapped were ones that included a suspected al-Qaeda member or affiliate. Does that qualify as "probable cause?" I'm not sure. That's an issue of fact and law, for lawyers to argue and judges to decide. But this judge never gave them the chance.

Would you accept such a flimsy and poorly reasoned opinion if it had upheld the NSA program? Not a chance. Neither would I. This is a major case. Its resolution will have major implications for decades to come. It deserves more than a four-page waveoff from a judge whose history and writing style both strongly suggest she's a partisan hack with no qualms about violating judicial ethics in order to satisfy her own political aims.

wolfwalker wrote:

Hogwash. "The facts already publicly admitted to" are incomplete. The administration has only acknowledged what was already reported by the press. Most information about the program remains classified. What honest and honorable judge would decide any case, much less such a major one, based on incomplete information?

But in order to decide the constitutional and statutory questions, all one has to know is that they are engaging in such surveillance without getting a warrant from the FISA court. They have admitted that. From that point on, it's all legal questions, not factual ones. Can they engage in such wiretapping without a warrant? FISA clearly says no. The 4th amendment clearly says no. The administration asserts that it has "inherent authority" to do it, but that's an absurd position - clearly the constitution cannot grant the president inherent authority to violate any other provision of the constitution it feels necessary.

Did probable cause exist for the tapped conversations? The only conversations that were tapped were ones that included a suspected al-Qaeda member or affiliate. Does that qualify as "probable cause?" I'm not sure. That's an issue of fact and law, for lawyers to argue and judges to decide. But this judge never gave them the chance.

You have it exactly backwards. The question is not whether the administration had probable cause or not because they never attempted to show probable cause to any court. If they had probable cause, both the 4th amendment and the FISA law requires that they show that probable cause to a judge in order to secure a warrant. That they refuse to get such warrants is the only thing relevant to those legal questions. They don't have to show Judge Taylor that they had probable cause, it's too late for that; they have to show the FISA court that they had probable cause before getting the warrant (though the law actually even allows them to engage in the surveillance and then get the warrant 3 days later, but even that is apparently too much to ask from this administration).

I agree that the decision is poorly reasoned, and likely to be overturned. I thought she did a terrific job of handling the procedural issue of the state secrets privilege, but a lousy job of handling the constitutional issues. I think her conclusion was correct but her reasoning was quite weak, especially in regard to the first amendment questions.

Ed, Glib Fortuna has commented on your opinion on this ruling.

I believe that the argument that wolfwalker was attempting to make, or should have attempted to make, was that the government was operating under exigent circumstances, and therefore probable cause alone would have sufficed absent a warrant.

Under such a situation, the burden of proof would fall upon the state to show that probable cause existed, prior to the search, that would suffice to secure a warrant, *AND* that they did not have the time or opportunity to obtain a warrant before acting due to the circumstances of the case, out of concern that either evidence would be destroyed, or another crime might be committed, etc. However, it should be noted that the exigent circumstances defense places the burden upon the state to show these things, rather than on the defense.

The biggest problem, of course, is that legally establishing the War on Terror, or whatever the official name now is, as one giant exigent circumstance is a Very Bad idea. But that's not really a legal opinion so much as a pragmatic one. Pragmatically, the FISA statute allows for retroactive warrants so as to prevent the state from ever needing to use exigent circumstances of national security as an excuse for warrantless searches. The civil libertarians among us agree to conveniently ignore that this is, by definition, an ex post facto law, in return for the agreement of the state to agree to obtain a warrant even where exigent circumstances require immediate action.

Thus, the state has no right to argue exigent circumstances in this situation, as time was not a barrier to obtaining a warrant. The only barrier to obtaining a warrant that appears to exist was probable cause itself. Unfortunately, the constitution is fairly clear on this point:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

By definition, a warrant cannot be constitutionally valid absent probable cause. Furthermore, as has already been mentioned, Congress has already legislated in this area in passing and updating the FISA statute, specifically taking advice from the Executive in doing so, therefore the power of the executive is fairly limited.

As exigent circumstances are not a valid defense for FISA-eligible cases, and as the state has not demonstrated any other rationale for avoiding a warrant other than an inability to show probable cause, and has in fact refused to provide more evidence than is currently available, the judge really had no other choice but to make this ruling.

On what grounds would one rule for the adminstration?

Excellent analysis, Hyperion, but I believe you are understating the case for both sides, if that be possible.

Since the public cannot read the government brief, we cannot say for certain what arguments they made, other than the claim of state secrets (a motion to dismiss made in open Court). However, based on the decision, I think we can rule out several possibilities (and see my earlier link to Orin Kerr's analysis, on a different thread here and also found on Volokh).

Apparently, the government did not argue that the program fell into one of the many exceptions to the probable cause requirement. When I was taking Criminal Procedure, there were eight primary exceptions and perhaps a dozen one-of-a-kind situations where the warrant requirement was waived. Thus, for Judge Taylor to write a conclusory statement about the Administration violating the 4th Amendment is irrelevant. Yes it was up to the government to argue for an exception, but with the question unanswered, I suspect the gov't lawyers were assuming its possible existence ruled out Summary Judgement against their case. Affirmative defenses do not have to be laid out in preliminary pleadings, especially where the defense expects judgement on a separate issue (state secrets, here).

Nor, apparently, did the Administration argue that since we are war with Al Quaida, surveillance of the enemy is a necessary part of military operations under the Commander in Chief. Nor did they present the judge with evidence in camera showing how effective the program has been at interdicting terrorist plots. So they chose not to argue the three best cases for their side. This is curious, but instructive.

Note also, that when the program was first exposed by the NYT, several top NSA officials (presumably the same ones leaking the story) stated not that the FISA Court wouldn't approve of the program, but that it COULDN'T. In other words, there were certain aspects of the program which not only did not conform with the statutory limits under FISA, but also any prior limits on military surveillance.

As I have pointed out in another post, this implies much more than intercepting domestic calls at an overseas location; that appears to be legal, and if there is any question, it is simple enough to have the actual interception performed by British intelligence. What is implied is surveillance strictly within the US. NSA may be getting its surveillance targets based upon foreign calls, but then they are monitoring US numbers, whether the future calls are international or no.

The more I look at this case, the more I disagree with Judge Taylor's decision to declare Summary Judgement for the Plaintiffs. She should have denied SJ for the defense, rejecting the state secrets doctrine in this case (this part of her decision is sound). Then, she should have required the gov't to present its pleading of affirmative defenses. Here, they could argue exeptions to probable cause, special authorization under AUMF, the Unitary Executive Theory, etc.

I am cautiously optomistic that the 6th Circuit will see things this way as well, and rather than conducting a de novo review, uphold the denial to dismiss under state secrets and remand the case back to District Court for further proceedings. There is a small chance of this.

Did probable cause exist for the tapped conversations? The only conversations that were tapped were ones that included a suspected al-Qaeda member or affiliate. Does that qualify as "probable cause?" I'm not sure. That's an issue of fact and law, for lawyers to argue and judges to decide. But this judge never gave them the chance.

You might have a point if Hayden hadn't already said that the programme doesn't meet probable cause standards, which is why they couldn't get warrants. It uses "reasonable basis to believe" instead.