Friday, August 18, 2006

NSA Warrantless Eavesdropping Loses Round One

The case is being kicked upstairs to the U.S. Court of Appeals, but this lower court's ruling (pdf) is a clear blow to those people who believe that President Bush has more power than the founding fathers dictated at the creation of the American experiment.

A federal judge in Detroit ruled yesterday that the National Security Agency's warrantless surveillance program is unconstitutional, delivering the first decision that the Bush administration's effort to monitor communications without court oversight runs afoul of the Bill of Rights and federal law...

Ruling in a lawsuit brought by the American Civil Liberties Union and other advocacy groups in the Eastern District of Michigan, Taylor said that the NSA wiretapping program, aimed at communications by potential terrorists, violates privacy and free speech rights and the constitutional separation of powers among the three branches of government. She also found that the wiretaps violate the Foreign Intelligence Surveillance Act, the 1978 law instituted to provide judicial oversight of clandestine surveillance within the United States.

"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," Taylor wrote in her 43-page opinion.

Glenn Greenwald adds:

The court's ruling that warrantless eavesdropping violates the Fourth and First Amendments clearly means (although the decision is far from a model of clarity) that Congress cannot authorize warrantless eavesdropping with legislation, which would preclude enforcement of the Specter bill.

This is clearest when the court rejects the administration's argument that the AUMF implicitly authorized violations of FISA. The court ruled that: (a) the AUMF cannot be read to amend FISA, but that (b) even if it could be so read, it would not matter, because Congress cannot authorize an unconstitutional program:

The AUMF Resolution, if indeed it is construed as replacing FISA, gives no support to Defendants here. Even if that Resolution superceded all other statutory law, Defendants have violated the constitutional rights of their citizens.

Op. at 39 (emphasis added). If Congress is not empowered to authorize this program through the AUMF (because the program is unconstitutional), then there is no good argument as to why the Specter bill can.

FISA as it stands does not prohibit the government from spying on terrorists or those legitimately suspected of contact with terrorists. The Bush administration took advantage of a bad situation to implement a warrantless surveillance program that has serious potential for abuse.

The all-purpose justification that "we were hit on 9-11" has outworn its utility. The president and his cohorts have been acting to strip the freedoms from the American people that the Islamic terrorists supposedly hate us for having.

As if that will make the Islamists any less angry with U.S. policies in the Middle East.

The pusillanimous supporters of the Bush administration are going to need to manage their own fears responsibly, and stop expecting everyone else to forfeit their own freedoms.

Then, if the nebbish community still requires additional assistance to cope, they really need look no further than their local supermarket.

Adult diapers are always cheap and available.


Anonymous golf nut said...

Hopefully, this will send a signal to other judges and those that have influence that what is going on is WRONG.


8/19/2006 10:07 AM  
Blogger DrewL said...

I've read some things today that would seem to call into question the judge's legal rationale for her decision and opinion. And they supposedly come from both liberal and conservative legal analysts.

It will be interesting to see how this decision and the subsequent appeal play into the upcoming congressional campaigns.

8/19/2006 5:14 PM  
Blogger Effwit said...


I read some of the same stuff. They were arguing that Judge Taylor didn't address certain issues and had an inelegant style.

But none of that matters.

Here's some of what Glenn Greenwald had to say about the critics:

The army of legal "scholars" who have spent the last couple of days patronizingly dismissing the Judge's decision have pretty substantial argumentative holes and misunderstandings of their own. Particularly with regard to some of the law professors (and definitely the editorialists and pundits), I question their familiarity with how civil litigation actually works and is supposed to work (as opposed to how the profound, high-minded constitutional debates play out in academia and Congressional hearings)....

What I argued yesterday -- that the correctness of the court's legal conclusions matters much more than the quality of the opinion -- is not some exotic theory I invented yesterday in order to criticize the Post editorial or defend Judge Taylor's opinion. To the contrary, that is the core principle on which appellate review in our country is premised.

Appellate courts cannot and do not reverse judicial decisions because the opinion was written poorly or because the reasoning was unconvincing. If the Sixth Circuit ends up thinking that this was the worst and most erroneous written opinion ever, but nonetheless agrees with the conclusions the Judge reached but for completely different reasons (on standing, the Fourth Amendment, FISA, etc.), the District Court's decision will be affirmed, not reversed. A bad or poorly reasoned opinion is not grounds for reversal. Only a wrong conclusion constitutes such a ground.

The issue on this appeal -- on every appeal -- is: "Are the court's conclusions correct?," not "do we agree with what the judge said and did in reaching that conclusion?" In a garden-variety lawsuit, a District Court opinion might have a significant impact on persuading appellate judges, but with issues of this magnitude, the appellate court will review the issues from scratch, no matter the quality of the lower court opinion. And if the Sixth Circuit concludes that the NSA program is unconstitutional and in violation of FISA, Judge Taylor's decision will be affirmed regardless of how pretty or complete its analysis is.

Greenwald is usually right about legal matters. I would bet on his version of this controversy.

8/19/2006 5:28 PM  
Blogger DrewL said...

Yes, a number of other analyses I've read have been put forth by legal scholars and professors, rather than by those who lawyer in the trenches on a daily basis, such as Glenn. What matters most is that the courts get the decision right rather than be concerned with how eloquent or comprehensive the opinion.

8/19/2006 9:36 PM  
Blogger Effwit said...



I'm not too big on the "unitary executive" theory. This importance of this case is that it will be headed to the Supreme Court where Bush's power grab will be evaluated.

Hopefully before Justice Stevens gets much older.

8/20/2006 1:00 PM  

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