ACLU v. NSA: An "Independent and Fearless Judiciary"

Regular readers of the University of Chicago Law School Faculty Blog will not be surprised to learn that I applaud Judge Anna Diggs Taylor's August 17 decision declaring President Bush's NSA surveillance program unlawful. Judge Taylor ruled that the President's secret directive to the NSA to engage in warrantless electronic surveillance of telephone calls and emails involving American citizens on American soil violates both the Foreign Intelligence Surveillance Act of 1978 and the Constitution. On several occasions, I have posted entries on this site arguing for those conclusions.

Although I am confident Judge Taylor reached the right result as a matter of law, I have to admit I was surprised by the decision. It takes a good deal of courage for a judge to hold unlawful a program that the President of the United States maintains is essential to the national security. Too often, judges in wartime have failed to uphold the rule of law. Too often, they have sustained programs they should have held unlawful, ranging from the widespread suppression of dissent in World War I, to the internment of Japanese-Americans in World War II, to the persecution of "Communists" during the Cold War.

Regular readers of the University of Chicago Law School Faculty Blog will not be surprised to learn that I applaud Judge Anna Diggs Taylor's August 17 decision declaring President Bush's NSA surveillance program unlawful. Judge Taylor ruled that the President's secret directive to the NSA to engage in warrantless electronic surveillance of telephone calls and emails involving American citizens on American soil violates both the Foreign Intelligence Surveillance Act of 1978 and the Constitution. On several occasions, I have posted entries on this site arguing for those conclusions.

Although I am confident Judge Taylor reached the right result as a matter of law, I have to admit I was surprised by the decision. It takes a good deal of courage for a judge to hold unlawful a program that the President of the United States maintains is essential to the national security. Too often, judges in wartime have failed to uphold the rule of law. Too often, they have sustained programs they should have held unlawful, ranging from the widespread suppression of dissent in World War I, to the internment of Japanese-Americans in World War II, to the persecution of "Communists" during the Cold War.

In American Civil Liberties Union v. National Security Agency, it would have been easy for Judge Taylor to evade her responsibility. She could have ducked the merits by endorsing the government's contention that the case should be dismissed either because of the state secrets privilege or because the plaintiffs lacked standing. Many judges, I fear, would have taken that route. As Judge Taylor explained in her opinion, however, those ways to sidestep the merits would have been wrong.

ACLU v. NSA was a civil action brought by a broad range of individuals and organizations alleging that the NSA surveillance program infringes their legal and constitutional rights. The government argued that the case should be dismissed because the government would have to reveal state secrets in order to defend the legality of the program . This argument is puzzling. It is analogous to a defendant in a civil action demanding dismissal of the case because in order to prove a defense he would have to forego the attorney-client or doctor-patient privilege. But the privilege gives the defendant the right to prevent the plaintiff from demanding the privileged information. It does not give him the right to have the case dismissed. In any event, this question was not presented in ACLU v. NSA because, as Judge Taylor held, the government failed to demonstrate that any state secrets needed to be disclosed in order for it to defend the legality of the program.

The standing argument is similarly puzzling. The government maintained that the plaintiffs lacked standing to challenge the legality of the NSA program because they could not prove that they had personally been subjected to unlawful surveillance. Why couldn't they prove this? Because the government insisted that the identities of the victims of the program were a state secret. On this view of the law, no one would have standing to challenge an unconstitutional and unlawful government program if the government keeps secret the identities of those who are aggrieved by the program. Though there is precedent for this position (see Laird v. Tatum), Judge Taylor rightly rejected the standing argument  in ACLU v. NSA on the basis of both logic and precedent. Happily, sometimes the law is not an ass.

The government will appeal Judge Taylor's decision to the Sixth Circuit. What will happen there is anyone's guess. I will venture a partial prediction: If the appellate judges do not hide behind the standing and/or state secrets arguments, they will affirm Judge Taylor's ruling. On the merits, the illegality of the NSA program is too clear to elide.

Who is Judge Taylor, anyway? Knowing little about her, I decided to check her out. She is an African-American graduate of Yale Law School (JD '57). In 1964, she spent the summer ("Freedom Summer") in Mississippi to help provide legal services for civil rights activists. She arrived in Mississippi on the very day that three young civil rights workers (James Chaney, Andrew Goodman, and Michael Schwerner)  disappeared in Philadelphia, Mississippi. When she and several other attorneys went to the sheriff's office to inquire about the disappearance, they were surrounded by a mob of hostile whites who hurled racial epithets at Taylor and her companions. Forty-four days later, the bodies of Chaney, Goodman, and Schwerner were found at Olen Barrage's Old Jolly Farm, six miles northeast of Philadelphia, Mississippi. Each of the civil rights workers had been shot in the heart. Four decades after the murders, in June 2005, Edgar Ray Killien, a local minister and member of the Klan, was finally brought to justice.

After her experience in Mississippi, Anna Diggs Taylor had a distinguished legal career in Detroit, where she served as an Assistant U.S. Attorney, special counsel to the city, and a private practioner. Among her many achievements, she won a landmark anti-discrimination case. In 1979, President Jimmy Carter appointed her a United States District Judge.

Judges are who they are. They strive to follow the law, but personal experience and character matter. I have little doubt that Judge Taylor's willingness to face the merits in ACLU v. NSA was in part the consequence of who she is as a person. Her decision took personal courage and a genuine commitment to the rule of law. The same kind of courage and commitment she manifested forty years ago during Freedom Summer. We need judges cut from such cloth.

This reminds me of an incident involving Judge Learned Hand in 1917. Judge Hand was then a young man. He was assigned to hear the case of Masses Publishing Co. v. Patten, which involved a challenge to the Espionage Act of 1917 at the very height of World War I patriotic fervor. The question was whether the United States government could lawfully ban the Masses magazine from the mails because it criticized American participation in World War I. Judge Hand fully appreciated the importance of the case to him personally. He knew he was then under consideration for promotion to the court of appeals, a promotion he richly deserved and much desired. When he learned he had been assigned the case, he wrote his wife that if the case were not quickly settled, his decision would go against the government, and then "whoop-la, your little man is in the mud." He added that "there are times when the old bunk about an independent and fearless judiciary means a good deal."

Sure enough, Judge Hand held that the government's order was unlawful, his opinion was promptly reversed by the court of appeals, and he was passed over for the court of appeals appointment, which went to a less distinguished jurist. Hand reflected later, "The case cost me something, at least at the time," but added, "I have been very happy to do what I believe was some service to temperance and sanity." Judge Hand's opinion in Masses is today regarded as one of the truly great judicial opinions in the history of the United States.

So, Judge Taylor, here's to a "fearless and independent judiciary."

Comments

[Jim French]

Mr. Stone:

There's an article in this morning's NYTimes that reports about a supposedly broadly shared doubt that this case was decided by precedent and sound reason. It quotes a few lawyers and professors, including Prof Sunstein and that Volokh fellow, who say that perhaps Judge Taylor substituted "passion for argument" if I remember the line correctly.

I'm not trying to poison the well here by asking loaded questions, a la certain other news sources. I read the article with more than a little skepticism, thinking that it probably overestimates the amount of shared doubt among experts, and moreover that it looks like an attempt at smearing a judge. We already know your position regarding Judge Taylor's courage (which you rightly applaud), as well as the legality of the NSA's spying program. May we have your opinion regarding either the purported doubt, or the legal merits of the decision, or both? Thanks.

[Frederick Hamilton]

Professor Stone,

Nothing wrong with fearless and independent judges. It would be nice if the opinion was more fact based than it is. The Washington Post editorial of yesterday, no supporter of Bush or the NSA, called it a misfire because of her lack of scholarship and her bombasting statements and bald assertions not based on the law but on her view of the law. She provided very little settled law to buttress her conclusion and brought in no case law indicating the exact opposite of how she sees the situation.

I appreciate your belief in your view of the law. There are many who do not share your view of the NSA wiretaps of international al Qaeda, terrorist calls in the context of Presidential powers to keep America safe in a time of declared war (AUMF and Iraq war approval-two seperate votes of Congress). Even the FISA court has acknowledged the presidents powers in this regard. So...we will see how this legal process works out, won't we. Don't be suprised if your thoughts on the law are not shared by the remaining federal judiciary up to the Supremes. Your positions are predominately reflective of politics and not the law. i.e. FAIR vs Rumsfeld 8-0 in the Supreme Court with a vigorous smackdown. The 1st Amendment was violated (free speech) per your argument then and became pretty obvious that nobody had trampled on law shools ability to speak at all as agreed by the liberal wing of the Supremes. To me it is obvious the same will apply here. No 1st Amendment violations. No 4th Amendment violations of "unreasonable" search and seizures and continuation of the constitutional principle of legal warantless searches (to many warantless searches taking place today to even list them). Also, the Presidents power to have real time intelligence on foreign terrorist calls will be held to be valid and lawful.

Judge Taylor's off the wall comments about this King stuff is gratuitous grand standing. I agree with the legal analysis I have read of her opinion that it would not have satisfied any constitutional law class in any decent law shool in America. Time will tell, but don't be suprised if your views are not upheld. Again.

[Frederick Hamilton]

Put forth much more eloquently than I can:

Judges, Politics, and Security
The awful NSA decision proves, once again, that they don’t mix.

By Andrew C. McCarthy

It would be wrong and regrettable, but it is certainly conceivable that the Supreme Court will eventually find the Bush administration’s NSA Terrorist Surveillance Program unconstitutional. One thing is certain, though. Such a ruling by the high Court will not rely on the handiwork of Michigan federal district judge Anna Diggs Taylor. Her effort yesterday to invalidate the program is a transparently political screed.

Judge Taylor last garnered national attention in 2002 when she was caught trying to rig the outcome of an affirmative-action case. Now, this relic of the Jimmy Carter twilight has fixed her gaze on a war against ruthless enemies who have already attacked the United States massively, serially and globally — an enemy whose leadership is unabashed in telling us, repeatedly, that its devout mission is an exponentially more devastating reprise of 9/11’s carnage.

And what does this jurist see? What she calls “the War on Terror of this administration” — not of the American people, but of George W. Bush — which “[p]redictably” seeks to evade judicial review.

Yes, here we have the thematic history of the administration that has fought to defeat jihadists … as told by a vestige of the administration that first empowered jihadists.

Judge Taylor obviously remains every bit the innovator she was when she creatively contorted the rules for impartial assignment of cases to steer that little school admissions matter away from a judge who, she apparently fretted, was not an ideological fellow traveler. (She backed down when the judge complained publicly about her “highly irregular” gambit.)

After all, who knew that lurking in the penumbras, unnoticed lo these two centuries, has been a First Amendment right to communicate privately overseas, in wartime, with enemy operatives plotting to murder Americans?

To arrive at this novel (ahem) discovery, Judge Taylor simply needed to blow past the long-settled law of standing-to-sue, as well as about 150 years of precedent — reaffirmed by the Supreme Court only a year ago — which holds that lawsuits may not go forward if they run an undue risk of impairing the national defense by publicly revealing our intelligence gathering capabilities.

For a moment, though, let’s leave aside standing. And state secrets. And the bizarre construction of free speech principles. And even Judge Taylor’s preposterous assertion that the Fourth Amendment “requires prior warrants for any reasonable search, based on probable cause” (compare, for example, here, for some of the zillion or so types of searches for which judicial probable-cause warrants are not required). What is truly galling here is Judge Taylor’s stern lecture about “separation of powers,” over which President Bush is portrayed as having run roughshod.

In the real system of separated powers devised by the Framers, the courts of the United States had no role — none — in defending this nation from foreign threats. That was to be the job of the president and the Congress, which is to say, the officials actually accountable to the citizens whose lives were at stake.

While Judge Taylor bleats about the need to respect “checks and balances,” the check our system has designed for national-security matters is political, not judicial. It implicates the right of all citizens collectively — the body politic — to self preservation. It is not concerned with such comparative trifles as the insatiable idio-obsessions of “activists” and gadflies — however theatrically petrified they may seem over the possibility that, for example, their “right” to shoot the breeze with Ayman Zawahiri might be “chilled” if the NSA lends its ears … along with an audience that already includes every foreign intelligence service on the planet.

The standing rules that Judge Taylor shunned are there for a reason. It is not a legalism. It is not some abstruse jurisprudential technicality that you’d need an Ivy League law degree to decipher. It is about the right of the American people to govern themselves.

Courts are not there to tell us how to live and tell the other branches how to do their jobs. They are there to redress concrete injuries that directly and uniquely affect individuals. If there is a government policy — such as monitoring al Qaeda’s international communications — that affects all of us more or less the same way, that is not a legal problem. It is a political issue.

Political issues get resolved by political actors. Here, the Framers trusted Americans, not judges. If a president tilts too far in the direction of either civil liberties or national security, the Americans who are consequently imperiled or intimidated have the final check. They can vote him out of office. If the president really shreds the Constitution (as opposed to using his daunting Article II powers to quell enemies and save American lives), citizens can spur congress to impeach him.

Congress, meanwhile, can convene hearings, summon experts, make findings, and enact laws which balance liberty and security. If legislators believe a national security initiative goes too far, they can end it by de-funding it … and face the wrath of their constituents who may well decide that increased safety is worth sacrificing some privacy — hypothetical privacy, by the way, as most Americans aren’t all that interested in chatting privately with Zawahiri.

Democratic self-determination and political accountability — that is the Framers’ gift to us.

Now, here’s what we’ve traded it in for: In the role of Everyman, meet the American Civil Liberties Union, the Council on American-Islamic Relations, Greenpeace, the National Association of Criminal Defense Lawyers, and other self-styled “public interest” groups which, in reality, have very different ideas from the public about how our government should prosecute a war it is in our nation’s vital interest to win.

And in the role of decision maker, meet Judge Taylor — worse than her sponsor, President Carter, because we are powerless to vote her out of office when she enters the political arena and renders us defenseless.

The president of the United States needing Judge Anna Diggs Taylor’s permission to penetrate the communications of a hostile alien terrorist network scheming to slaughter Americans. That was not exactly what Madison had in mind.

— Andrew C. McCarthy is a senior fellow at the Foundation for the Defense of Democracies.

[Anders]

I'm sick to death of all this partisan, apologist diatribe, specifically when it employs the rhetoric that courts should "defer" to the other two branches. The grand-standing ayatollahs of judicial deference, the 4 conservative members of the Roberts/Rehnquist Courts, have been responsible for overturning more (popularly enacted) laws than any other Supreme Court makeup in our nation's history. Have a law that presumes that a (Republican) president is infallible during wartime? Then they defer. Have an EPA regulation, an affirmative action law, or a statute that dares to regulate the free market? They overturn it. To say that overturning a blatantly illegal and unconstitutional law is "political" smacks of audacity, to say the least, when considering the truly (albeit covert) partisan loyalties of such proponents.

Elected or not, all three branches are bound by the Constitution, and not merely the judiciary. And an unconstitutional law is an unconstitutional law; what purpose would there be for courts if the only purpose they served was a rubber stamp function for elected officials?

And no, the Framers could not forsee militant Islamic fundamentalists, just as they could not forsee women's suffrage, the abolition of slavery, or the minimum wage. But if there was one timeless concern of theirs - one that prompted their revolution, let alone the Constitution - it was their near-phobic disgust at arbitrary and excessive executive power. An administration that is wholeheartedly conviced that it is above the law is the very embodiment of what most prompted the Framers to create a system of checks and balances. Historically speaking, deriding executive hubris as "Kingly" isn't out of context at all - unless you're willing to chastise the Framers for being "political."

[Frederick Hamilton]

Anders,
Of course the Framers could, should and were political. They were establishing a polity. Should federal judges be political, most would argue not. As for the Supremes rubber stamping executive authority, I guess your memory is not strong enough to remember Hamdan.

Nobody in the three branches necessarily defers to any other branch. They operate within the powers granted by the Constitution. The final arbiters being the people.

I'm sorry, I guess I don't understand, "To say that overturning a blatantly illegal and unconstitutional law is "political" smacks of audacity". What law are you talking about?

You may think Judge Taylor's decision is booth right and reasoned well. We will see won't we whether all the discussion's about her jurisprudence and Constitutional determinations rise to the level of your esteem.

Your hate for this administration is palpable. Most of America's hate for the terrorists who want and tell us they want to kill us is just as palpable or more so than your's for Bush. Square that if you can.

The people will decide by our elected representatives very soon what we want our government doing vis a vis the NSA and terrorists. I suspect it will be closer to Bush's ideas than yours. I hope you can live with that without losing sphincter control.

Your diatribe about "An administration that is wholeheartedly conviced that it is above the law" is pretty inane. I am trying to remember the instances of law breaking resulting in convictions of which you speak. It is fun to listen and watch the mindless Bush haters approach apoplexy. Makes politics so much fun.

Yeah, your probably right. Judge Anna Diggs Taylor will go down as one of America's brightest and best jurists. No doubt you'll be proved right on the mark. Peace.

[DennisCahillane]

Isn't the idea here that law enforcement personnel could have obtained warrants from the FISA court *after* doing the surveillance in question? And that the FISA court almost never denies requests for warrants? So the wiretapping powers of the executive branch are broad enough without secret directives from the President to violate the Fourth Amendment. If the President wants more surveillance powers he needs to go to Congress and ask for them. On its merits this seems like an open and shut case. And the prevalent fantasy among Bush-sycophants about "liberals" chatting on the phone with Ayman al-Zawahiri is not nearly so relevant as the photos of Rumsfeld shaking hands with Saddam Hussien, wouldn't you think?

http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB82/

[geoffrey manne]

Geof: You really think this opinion took "a good deal of courage?" I must say that I think the result is right, but for reasons almost totally unrelated to her decision (except in its grand rhetoric of limited inherent powers). Having said that, gimme a break! It's courageous for a federal judge with life tenure to write an opinion she knows will win her the undying love of a substantial portion of the intelligentsia, and which can easily be reversed on appeal in very little time just in case national security really is imperilled? The opinion may be important, it may even be right. But it certainly has nothing to do with courage.

[Anders]

Frederick,

And I guess your immediate memory is not strong enough to remember that 1: I was talking about the 4 conservative justices, 2: all of them dissented in Hamdan (except for Roberts, who recused himself, but who in all likelihood would have voted with the other three).

The audacity I speak of belongs to reactionaries like you, in dismissing the protection of a Constitutional ideal as a liberal discretion. No serious mind labels the rights to free association, due process, and equal protection under the law as partisan ideals. Why is holding a presidency accountable for its violation of the Constitution and, curiously, a popularly-enacted law (FISA), suddenly "political"? Because it puts your own moral indignation on a short leash by not allowing the Bush Administration to wield absolute power?

Your naive majoritarianism rivals Bork's (who believed that Congress should have the power to overturn a Supreme Court decision by mere majority). The entire purpose of the judicial branch is to safeguard the rights of individuals when all other arbiters (yes, including the people) violate their liberties. A violation of the law is what it is, regardless of whether the majority sponsor it or not. Was the South of the mid 20th century justified in what it did to black Americans because the (white) majority overwhelmingly sanctioned that treatment? Do you seriously believe that those blacks could have sought protection through their Southern legislatures, especially assuming if the courts employed your "hands off" approach?

And don't belittle my hatred for tyrants. I would feel palpable hatred for any administration - Republican or Democrat - that sought power at the expense of everything else. I find it pathetic that your best defense of such excesses is that the majority feels palpable hatred for terrorists. By that logic, Korematsu would have had no legal standing to challenge the internment of Japanese-American citizens because Americans at that time hated 'gooks.'

People like you practice a rabid form of political projection, I am finding. You accuse those who criticize your preferred political spokesmen as being partisan, while using partisan reasoning to do so. Tell me honestly that you would use your majoritarian rationale to defend Congress if it suddenly repealed the Patriot Act, illegalized Bush's domestic wiretapping, called for an immediate pullout of Iraq, relinquished all funding for Israel, and abolished the Department of Homeland Security.

[LAK]

Frederick,

First of all, there has not been a "declaration of war." get that through your head. This "war" of which you speak, and for which you wouldallow the executive bnranch to ignore the law, is more in your head than anywhere else. Grants of war powers ain't full on declarations of war. Secondly, you have some nerve being such a dick to Professor Stone, bringing up Fair v Rumsfeld, which has little to nothing to do with the issues here. Stop being such a dick. This is a case about when our governement needs a warrant to listen in on phone calls of its citizens. You speak of the NSA program as if making it comply with FISA would somehow prohibit our intelleigence form conducting any surveillance of suspected terrorists.

Of course the president has the power to take unconstitutinal actions in the name of imminent threats to our country. By all accounts, the NSA program is nothing of the sort. It is run of the mill intelligence gathering operation. You really want to read the implicit powers of the commander in cheif clause so broadly they can trump the explicit language and accepted, clearly articulated case law of the 4th Amendment? you really want that? You want the same implicit powers to trump explcit laws like FISA, duely passed by Congress, and even amended after the grant of war powers on which President Bush bases, in part, his implicit power to ignore that Act of Congress and our most basic constitutional principles?

If this was indeed a "declared" war and there was a specific and *imminent* threat against our country, then the president ignoring the rule of law might be seen as necessary and thus legal. The executive branch abiding by FISA, which was amended specifically to address the very sort of surveillance the NSA program conducts, against foreign terrorists, would hardly cripple our intelligence gathering capability. What it would do is protect the right of U.S. citizens not to be spied on, without cause, by their own government. Your irrational, cowardly fear does not mean there is an actually an imminent threat large enough to justify president Bush taking a big dump on the Constitution, no matter rich white and fratty you are.

And I do think it was courageous to address this issue rather than bite at the bait of the government's standing argument. Our SC has taken the cowardly way out recently with respect to the pledge case, and our shameful history as a country of our courts looking away when our executive branch violates the constitutional rights of its citizens during times of fear does make this stand a courageous one.

[Frederick Hamilton]

LAK,

We haven't had a "declaration of war" since WWII. To argue we aren't in a war because of the lack of a "declaration" is like saying the income tax is illegal. The two votes to go to war (Iraq and the AUMF against al Qaeda) are indeed all the legal requirement needed for these "wars". Is it your position that these Congressional votes were not "war" votes? Not many would agree with that.

I am not a dick on FAIR vs Rumsfeld. It goes to the argument by Judge Taylor that the NSA wiretaping violates the 1st Amendment. Total hogwash. As was FAIR vs Rumsfeld that Prof. Stone has ignored explaining since he argued strongly it was a 1st Amendment violation. LAK, you answer it then, is the NSA wiretaping a violation of the 1st Amendment? I maintain the same faulty thinking by supposed constitutional scholars is at work with Taylor's opinion of the NSA program. I am comfortable that the NSA intercepts of international calls will be judged to be constitutional.

Man it easy to get under your skin. "Your irrational, cowardly fear does not mean there is an actually an imminent threat large enough to justify president Bush taking a big dump on the Constitution, no matter rich white and fratty you are." LAK, you can do better than that in your support of Judge Taylor. Rich white and fratty. I like it.

Nah, you guys are the irrational ones. Your arguements are to vitriolic to be taken seriously. Just like Judge Taylor's opinion itself. As the Washington Post says, a "misfire". When you can't discuss something without epithets it says all that needs to be said. Dick, white, rich, fratty, cowardly, et al.

I will look forward to hopefully an expedited review by the 6th Circuit and eventually the Supremes. I as President Bush will respect the law as articulated by a thoughtful review of the program. I hope it is not short-circuited by Congress passing Senator Specter's bill giving the administration all they are looking for and denying the country a wonderful exercise in sorting out the disagreement you and I have over the NSA program and presidential powers. The ensuing discussions at the Supreme Court level would be a great civics lesson on the seperation of powers, et al. Unfortunately if the Supremes sided with Bush the people who wouldn't respect the law would be on your side of the fence. Kinda ironic isn't it?

[Kimball Corson]

Stone and LAK clearly have it right. Those who disagree here simply haven't read FISA and its amendments, nor much Fourth Amendment or Constitutional law. The matter, in light of those materials, is not so debateable as Frederick and others here or the Administration would imply. It is pathetic to see right wing partisanship muster such poor contrary arguments with a straight face. For example, those who hide behind the standing issue, don´t come to grips with the government´s claim that the facts on standing are a state secret, requiring dismissal. Equity has never allowed a defense to be raised by a catch 22 concealment of the facts by the party raising it. Is this concept hard to grasp?Does fundamental procedural fairness matter? To be sure the Supreme Court, if not the Court of Appeals, might derail Taylor´s decision on any one of a number of inappropriate grounds. And to be sure, doing so may reestablish the "law," at least for the time being, but those of us who would thereby be chastised are not really thereby rendered wrong. Why? Because conservatives simply want what they want, period, and it is of no matter to them how they get it, including by dishonesty, political muscle or intellectual fraud -- all of which they then visit upon the rest of us. This is a key reason I do not count myself among their numbers.

[Kimball Corson]

Frederick,

Do I understand you to be saying that, as a matter of Constitutional law, there is no right of privacy implied under the First Amendment? And further, that any such right is hogwash? If so, why and on what do you base that opinion?

[Frederick Hamilton]

Kimball,

As your question asks "implied" under the 1st Amendment. It depends on the facts of the case doesn't it? Certainly "implied" depending on the case. Or why would you use the word "implied". Simple, privacy isn't mentioned in the 1st Amendments. You bet, privacy "implied" depending on the circumstances. A privacy right to talk to Zawahari? Don't think that lives in the 1st Amendment.

Look the legal battle lines are pretty clearly drawn. Both sides are prepared for their day in an impartial court. Judge Anna Taylor Diggs wasn't quite that court.

You are proving my point. If Judge Taylor's decision gets "derailed" by a presumably thorough review at 6th Circuit or the Supremes, it will be "on any number of inappropriate grounds". Man you guys are good. Only you REALY know the law. I love it.

Yes, the lines are drawn, the different law professors and constitutional experts are at loggerheads (execept Stone and you, LAK, et al who REALY know the law) so lets see how this gets sorted out. I know it pains you, but those "right wing" arguements just might carry the day. The FISA court has already agreed the president has the authority to wiretap terrorists. I too wish I knew the exact details of the NSA enterprise. I am willing as are 70% of Americans because of the threat (US flag carriers targeted for destruction over the Atlantic) to let the government listen in to all terrorist calls they can identify. Simple as that. Also quite legal.

Let the battle begin. Courage by the way is not in the federal judge with a lifetime appointment expressing her views. Courage is Iwo Jima, Normandy, Que San, Pork Chop Hill, Kandahar, Baghdad. That is courage. How much courage did it take for Judge Taylor to try and steal the affirmative action case from another federal judge? Courage was seen in those passengers in the flight over Pennsylvania. In America some think courage is sitting in an air-conditioned office making decisions (Repub and Dem). That isn't courage. This discussion over the NSA program needs to be nationwide and Congress wide. Not just the courts. It is good.

[LAK]

"LAK, you answer it then, is the NSA wiretaping a violation of the 1st Amendment? I maintain the same faulty thinking by supposed constitutional scholars is at work with Taylor's opinion of the NSA program."

Well I'd like to know more about the NSA program before I answered that, and would like to read Taylor's opinion closely. But, yes, at first glance because the press will be affected by this program and it will have a chilling effect on both political speech and press freedom. It is a far cry factually and legally from the situation that was presented in FAIR v Rumsfeld, that is for sure.

[Frederick Hamilton]

LAK,
It gets curiouser and curiouser, Kimball thinks her 1st Amendment violation is privacy when in fact Taylor says the violation is "free speech". As to constitutionality, I agree with John Q. Wilson's argument in the Wall Street Journal today. i.e. FISA law possibly violated but nothing unconstitutional. To wit:

Pre-Emptive Surveillance
By JAMES Q. WILSON
August 21, 2006; Page A10
Federal district court Judge Anna Diggs Taylor has ruled that the warrantless interception of telephone and Internet calls between a foreign agent and American persons is illegal and unconstitutional. It is possible that she is right about the illegality, but she is almost surely wrong that it is unconstitutional. The government has appealed this decision to the Sixth Circuit. No one can say what it will decide, although other appeals courts have tolerated such surveillance. Ultimately the Supreme Court will have to decide the matter.
The constitutional arguments against the surveillance are unpersuasive. A Washington Post editorial dismissed them as "throat clearing." Judge Taylor refers to the free speech provision of the First Amendment but fails to explain how listening to a conversation or reading email abridges anyone's right to speak. Taken literally, a constitutional ban on intercepts would make it impossible to overhear the mafia plotting murder or business executives fixing prices.
Of course, the ACLU and the other organizations that brought the suit are not criminal conspirators. But for their claims to be taken seriously they must show that they were materially harmed. This is because the Constitution only allows actual cases or controversies, not hypothetical or imaginary ones, to be heard in court. To meet that test, plaintiffs must show that they are the actual victims of a direct and palpable harm. Without that rule, judges would be issuing advisory opinions on what the law may mean, not in settling concrete disputes. Citing no factual evidence, Judge Taylor says that these organizations do have standing.
She also says that the surveillance violates the Fourth Amendment. But that provision only bans "unreasonable searches and seizures," not all searches and seizures. Customs agents have the right to search, without a warrant, you and your luggage (including your PC) when you enter this country. The Border Patrol can stop and search recent arrivals here when they are miles from the border. The Supreme Court has authorized customs officers to open incoming international mail without a warrant. It is not clear how a phone call or email originating overseas deserves more protection than clothing, the contents of a computer, or international mail. The Supreme Court has upheld all of these exceptions to constitutional limits on searches.
What is most striking about Judge Taylor's decision is that she nowhere discusses the approval of warrantless searches by other and higher federal courts. In 1980, the Court of Appeals for the fourth circuit held (U.S. v. Truong Dinh Hung) that "the Executive need not always obtain a warrant for foreign intelligence surveillance." That is because a "uniform warrant requirement" would "unduly frustrate" the discharge of the president's foreign policy duties. It would "delay executive response to foreign intelligence threats" by requiring the judges instantly to make decisions about rapidly evolving events.
In 2002 the FISA review court itself held (In Re: Sealed Case) that the president "did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." The Supreme Court has never spoken on this matter, but it is astonishing that Judge Taylor never discusses the FISA and appellate court decisions that bear directly on this question.
It is possible that the surveillance violates the FISA law. That statute allows the government to tap the communications between foreign powers provided that there is "no substantial likelihood" that these communications will involve a "United States person." If an American will be part of the communication, then a warrant from the FISA court must first be obtained.
This statute, written in 1978, was aimed at dealing with foreign governments that wished us harm, but it preceded our experience with modern terrorists. Now we know that our cities can be attacked at any time in ways that cause thousands of deaths. Listening in on possible overseas terrorists who are talking to Americans is designed to find out who may attack us, when and how. Such eavesdropping is done to discover who is a terrorist. It is impossible to have "probable cause" to justify hearing such calls, and therefore impossible to obtain in a timely manner a FISA warrant.
No one outside the National Security Agency knows the details of our surveillance of communications between an American and a person living overseas, but there can be little doubt that it is intended not to bring criminal charges but to learn who is a terrorist before he has a chance to act. The surveillance is designed to provide investigatory leads, not prosecutions. These leads are, I suspect, sudden, ephemeral and suggestive. It is hard to imagine that, in this country's efforts to connect the dots, that our government should not be allowed to discover the dots.
The government argues that the president has independent constitutional authority to engage in warrantless searches across national boundaries and that this power was strengthened by a law, the Authorization for Use of Military Force (AUMF), that entitles him to use "all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." The AUMF does not mention surveillance. But then it does not mention detaining terrorists, either, and yet the Supreme Court (in Hamdi) held this detention is a "fundamental and accepted incident to war." If detention, though not mentioned, is legal, is surveillance, which is not mentioned, also legal? That is a bullet the Supreme Court will have to bite. In my view, the war against terrorism requires both surveillance and detention as well as armed conflict.
But suppose that neither the president's constitutional powers nor the AUMF justify an exception to the FISA rule. Congress can correct this problem by amending FISA to create an authorization for warrantless surveillance that is directed at people living overseas, even if they communicate with someone living here, provided that this cannot lead immediately to criminal prosecution. If the surveillance produces leads as to who is a terrorist, then a FISA warrant can be obtained to authorize acquiring supportive evidence.
The war on terror is underway. It will last through my lifetime and that of my children. America will almost certainly suffer further terrorist attacks. We must be prepared to take reasonable steps to protect ourselves. The Constitution, as Justice Robert Jackson said, is not a suicide pact. But neither is it a blanket authorization for any executive action. Congress ought to be able to clarify how far we can go. It will be interesting to see who votes for and who against a reasonable authorization for a bolder antiterrorism measure.
Mr. Wilson, who has taught at Harvard, UCLA and Pepperdine, is the author, with John J. DiIulio, of "American Government" (Houghton Mifflin, 10th ed., 2005).
URL for this article:
http://online.wsj.com/article/SB115612635868740748.html

[LAK]

Frederick, I can think of a whole slew of differences between the contents of a phone conversation and a customs inspection upon entering or leaving the country. First and foremost is that the contents of a phone conversation have been deemed protecetd by 4th Amendment over and over again.

And as for the shadey citations the WSJ gives, I'm not sure they are talking about surveillance of an American Citizens within US borders. Citing the the WSJ editorial page doesn't get you very far. The in re Sealed case is just that, we don't know what the court was talking about, and the FISA court decision relates to eavesdropping on foreign suspects only, not American citizens. I believe it was whether eavsedorpping on IRA spies in the country talking to people in N Ireland triggered the "US person" definition in FISA. The ruling was that it did not and it did not require a warrant. NOT the case of a US citizen talking to someone.

The supreme court has spoken many times about the right of a US citizen to not have their phone tapped without a warrant. So you'll have to do better than a WSJ op ed, or just stick to medicine.

[LAK]

And I should note that the WSJ op ed misses the fact that FISA was amended after 9/11 to apply specifically to foreign terrorists. So the paragraph suggesting that it is old and inadequate and doesn't fit current terrorism needs is flat out wrong.

[Frederick Hamilton]

LAK,
Well, I certainly know medicine better than the law, but law is an avocation. I do try to distill the subtle differences in the law. You may be correct on the distinction of phone calls, not quite sure. Clearly though there is significant disagreement on the whole issue of the NSA activities and I look forward to the further legal scrutiny that Judge Taylor's opinion will bring and bring soon. Perversely, I am actually thankful for her decision. Don't agree with the courageous part and actually don't agree with her conclusion, but it does force some futher discussion. All to the good. As to the WSJ, just seemed well reasoned to this non lawyer from a knowledgable lawyer (Harvard,UCLA,Pepperdine). Time will tell shortly.

[Frederick Hamilton]

LAK,
Here is obviously another no nothing lawyer writing in that rag the WSJ today:

"Monitoring, even when it takes the form of wiretapping or other electronic interceptions, need not be conducted under a warrant. The Fourth Amendment restricts warrants, as I have said, but warrantless searches are permissible as long as they are reasonable. The potential abuses of warrantless surveillance can be minimized, without judicial intervention, by rules limiting the use of intercepted communications to national security, requiring that the names of persons whose communications are intercepted (and the reasons for and results of the interception) be turned over to executive and congressional watchdog committees, and imposing draconian penalties on officials who violate civil liberties in conducting surveillance."

Mr. Posner, a federal circuit judge and a senior lecturer at the University of Chicago Law School, is the author of "Uncertain Shield: The U.S. Intelligence System in the Throes of Reform" (Rowman & Littlefield, 2006).

[BAC]

Frederick --

You and Judge Posner agree that warrantless wiretaps could be allowed under the Constitution if certain "rules" were put in place addressing the use and oversight of the information gathered. Well enough, but FISA provides a set of rules for warrantless wiretaps, and those rules were not followed.

Not that I agree with Professor Stone's praise of the Detroit decision. By leaping to the Constitution, rather than relying on FISA, one judge in Detroit has managed to tie the hands of both Congress and the President on a critical national security issue. We can only hope that the Sixth Circuit will stick to the statute so that reasonable rules can be developed regarding warrantless wiretaps for national security purposes.

[Frederick Hamilton]

BAC,
Bush's administration has appealed and there is a stay with regard to her order. So for now the TSP within the NSA can continue. That is good. Good for America. I agree with Judge Posner in his assessment that our anti-terror capabilities should not be tied to the federal judiciary as if it is a routine criminal matter or civil rights matter. The threat and enviornment are too dangerous to allow prevention to take a back seat to the slow machinations of a federal court.

Judge Taylor has done the country a favor by bringing the issue in all likelihood to the Supremem Court. For that we should thank her. Her legal arguments by all acounts are about as weak and pathetic as a sitting federal judge has promulgated. I would like to see the constitutional law experts at the University of Chicago Law School opine on the quality of her decision. I have read from critics that her reasoning, citations, et al would fail any constitutional law class. To many glaring omissions of case law, Supreme Court decisions, etc.

[Rat]

"The FISA court has already agreed the president has the authority to wiretap terrorists."

Frederick, surely you understand that this isn't in dispute. The issue is whether FISA and the Constitution place limits on the president's ability to wiretap.

[Seth Edenbaum]

http://balkin.blogspot.com/2006/08/why-should-we-be-boxed-in-by.html"

"In today's Wall Street Journal, Judge Richard Posner laments the fact that the federal courts are available to adjudicate whether the President's methods of fighting the war on terror are consistent with the Constitution and laws of the United States.

Referring to what he obviously views as the misguided decisions of the Supreme Court in Hamdan and Judge Taylor in ACLU v. NSA, Posner complains that 'we are boxed in by our revered 18th-century Constitution as interpreted by the Supreme Court.' "

The logic of productivism says that I perform a function to achieve a set goal in the terms of a common understanding: I work to get paid. The logic of free inquiry says that I may do something for some as yet undefined purpose. My favorite example is the difference between sheetrock and plaster (I've done a lot of both). Hanging sheetrock is a job, but plastering is a trade, a craft, and as such performs more than one function.

Craftsmanship is a form of inquiry, not merely of functionality (and of course merely as product, sheetrock is garbage). The logic of law and economics, of productivism, is the logic of inquiry constrained by the lowest common denominator of human interaction and human behavior. Given that markets do not require social freedoms [China], it's important for those who want to defend civil liberties that we cede no ground to those who want to define freedom down to the level of production and consumption.

To defend freedom is not defend the market, it is to defend freedom of inquiry, sometimes or even often against the market. To defend the rule of law is to defend curiosity itself, as a value. It is to defend observation, skepticism and craft, the empiricism of literature, and of legal interpretation -of midrash-
against the amoral vulgarity of market determinism.

Simple bullshit foundationalism that tries to pass itself of itself as enlightened wisdom. Grotesque.

[DCLaw]

Frederick, careful what you wish for. If and when a case regarding the NSA program reaches the Supreme Court on the merits, you will likely find yourself deriding all but one or two members of the Court as soft-on-terror liberals.

Get a grip. An overwhelming majority of legal experts thinks the NSA program is clearly illegal on some ground.

[Frederick Hamilton]

DCLaw,
Got a good grip. "Clearly illegal on some ground". Thats pretty good. What ground? 1st Amendment free speech or privacy? 4th Amendment search and seizure without a warrant? Breaking the FISA law itself? You need to do better than "on some ground".

I look forward to the Supremes taking the case as defined by Judge Taylor. Agree with John Q Wilson and Judge Posner. Don't see any problem with the consitutionality of TSP as pursued by NSA. Find myself comfortable with the majority of Americans that want our government doing all it can to find, contain, disrupt, destroy and neutralize the terrorists. I think it all fits nicely within the legislatively passed AUMF against the terrorist wherever they may be.

Might the TSP by NSA break the FISA law? Possible. Not sure. AG Gonzales did a fine job of explaining the administrations position to Congress on why it does not. Hey, some constitutional scholars aren't sure FISA is constitutional. Never been tested at the Supremes level. Who knows.

No problem with me, I relish Judge Taylors opinion going to the Supremes and I will gladly live with whatever they decide. Other than the people, nobody trumps the Supremes. What I find particularly interesting is if somehow the federal judiciary takes away real time intelligence gathering on the terrorists what will the people's policy makers do to rectify the 6th Circuits/Supremes decisions? This past Wednesday, I think was the go live date for the destruction of 10 to 20 U.S. flag airlines from London to the U.S. NSA was part of that. MI5 and MI6 in the U.K. have a more robust ability to listen to the terrorists than we. What will Americans want to do when the planes fall out of the sky or the tunnels get gassed or the trains bombed? Judge Posner has come to grips with the problem, what about you? What would you do? Would you give Bush real time listening in on the terrorists without a judicial warrant?