Jennifer Van Bergen is a journalist with a law degree. Her book The Twilight of Democracy: The Bush Plan for America has been called a “primer for citizenship.” She can be reached at jvbxyz@earthlink.net.
Yesterday, a federal district judge struck down the domestic spying program conducted by the National Security Agency that President George W. Bush admitted authorizing at least 30 times. Judge Anna Diggs Taylor of the district court in the Eastern District of Michigan ruled the spying program unconstitutional and ordered an immediate halt. While the president’s critics are cheering the rebuke and civil libertarians are likely to applaud the decision, it is not as clear-cut a victory as it appears.
The case was brought against the NSA by the American Civil Liberties Union, the Association of Criminal Defense Lawyers, the Council on American-Islamic Relations, Greenpeace, and several individuals, including lawyers representing foreign clients and Harper’s Magazine journalist Christopher Hitchens (click here for PDF of opinion).
The NSA had claimed the court should not even consider the case arguing it risked exposing sensitive state secrets, citing the “state secrets privilege.” Judge Taylor disagreed because the case did not involve a "secret espionage relationship between the Plaintiff and the Government"—in other words, when the plaintiff is a spy—and the rule barring judicial review where state secrets are involved applies only to such relationships, Taylor wrote.
The state secrets privilege also bars courts from allowing the introduction of any evidence where the government cannot defend itself without revealing information that could “harm national security interests, or would impair national defense capabilities, disclose intelligence-gathering methods or capabilities, or disrupt diplomatic relations with foreign governments.”
The judge ruled, however, that because the information on which the plaintiffs relied in suing the NSA was already public, the state secrets privilege did not bar the suit. Further, the judge wrote the NSA’s argument that it could not defend itself without revealing classified information was “disingenuous and without merit” because the he NSA had already claimed that the president had inherant power both under the Constitution and the congressional Authorization to Use Military Force passed after 9/11 to implement the NSA program. In other words, clearly the NSA was able to draw on authority to defend itself without revealing any secret information.
Judge Taylor also noted that if the court were to throw out the case based on “unsubstantiated minor distinctions” made by the NSA, the president’s actions “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,” wrote Taylor.
But Taylor, for the most part, was addressing throughout the decision only the legal issue of “standing”—whether the plaintiffs even had a right to bring the suit at all. Her discussion of the merits of the case—the central questions of whether the spying program violated the Constitution—was not so well-reasoned. Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School, described Taylor’s decision on the merits of the case “a bit confused” and “very sketchy indeed.”
The plaintiffs claimed violations of the Fourth Amendment, the First Amendment right of association, and “separation of powers”—the constitutional rule that requires that each of the three branches exercise different powers and that none encroach on any other’s powers. The ACLU and other plaintiffs claimed that the NSA program encroached on congressional powers by violating the law that was specifically enacted to regulate executive branch surveillance.
The court disagreed with the NSA’s claim that Bush had “inherent authority” as commander in chief to conduct the program or that, alternatively, the AUMF provided him with authority.
The court declared:
The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III [of the U.S. Code, which regulates wiretaps], and obviously in violation of the Fourth Amendment.
Yet, Balkin complains that the court “seems to be very weak in its reasoning about the separation of powers” and did not even refer to the most important Supreme Court decision on this issue: Hamdan v. Rumsfeld, discussed recently on TomPaine.com .
Hamdan did not decide the reach of presidential powers to engage in domestic surveillance, but it suggested that to the extent that the president has such power, it must fall within limits enacted by Congress: specifically FISA, the Foreign Intelligence Surveillance Act, the law that regulates presidential surveillance.
Judge Taylor, however, seems to have overlooked the Hamdan ruling and for this reason her decision will likely be appealed by the NSA and potentially overturned by the Sixth Circuit Court of Appeals—or if it is upheld, it will be so by application of Hamdan and FISA, not on the grounds on which Judge Taylor relied.
While progressives may rejoice at the decision in this case, to undo the appalling NSA program we need a better and stronger ruling.
