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NSA program struck down by judge

UPDATE Friday p.m.
U.S. District Judge Anna Diggs Taylor on Friday ordered a stay of her ruling until she rules on the government motion for a stay pending appeal. That motion is due by Aug. 23, with the opposition due on Aug. 29 and the government reply on Sept. 5. Judge Taylor will hold a hearing on the motion Sept. 7.

This is another in a continuing series of reports on how Supreme Court precedents impact later cases. The primary precedents at issue here are Totten v. U.S., in 1875, U.S. v. Reynolds, in 1953, and Tenet v. Doe in 2005. on state secrets, and Yongstown Sheet & Tube v. Sawyer in 1952 and Hamdi v. Rumsfeld in 2004 on presidential powers.

A federal District judge in Detroit on Thursday struck down the federal government’s “Terrorism Surveillance Program,” declaring “the public interest is clear, in this matter. It is the upholding of our Constitution.” In a 43-page ruling barring continuation of the program, the judge also found that the program violated the Foreign Intelligence Surveillance Act, a 1978 law passed to control government electronic eavesdropping.

Senior U.S. District Judge Anna Diggs Taylor, a 27-year veteran on the bench, became the first court to rule directly on the legality of the controversial National Security Agency program so far as it reaches telephone users and e-mailers inside the U.S.. (A federal judge in Chicago in July dismissed another challenge to the NSA program, based on the government’s claim of the “state secrets privilege.”) Judge Taylor’s decision Thursday in American Civil Liberties Union, et al., v. National Secuirty Agency, et al. (docket 06-10204) can be found here. The judge’s order — permanently enjoining officials from “directly or indirectly utilizing” the program “in any way, including, but not limited to, conducting warrantless wiretaps” that violate federal law — can be found here.

Saying that the courts would not allow the NSA program to be immunized from judicial review, Taylor declared: “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 inthe Bill of Rights. The three separate branches of government were developed as a check and balance for one another.”

The Justice Department filed an immediate notice of appeal to the Sixth Circuit Court, and asked Judge Taylor to stay her ruling pending the outcome of the appeal. Both sides agreed to a stay while that request is pending in District Court, the Department said in a statement. (That statement can be found here.) The Department called the NSA program “an essential tool for the intelligence community in the War on Terror.” It repeated the government claim that the Constitution “gives the President the full authority necessary” to “protect the American people.” (Attorney General Alberto Gonzales discussed the ruling and the program at greater length in a press briefing, which can be found here.)

The judge issued the ruling one day after the Justice Department had notified her of a decision Aug. 9 by the Judicial Panel on Multidistrict Litigation that would, unless blocked by objections, transfer this case to a U.S. District Court in California for pre-trial proceedings. The judge did not mention that issue in her opinion. (An earlier post on the Judicial Panel’s action can be found here.) Since the transfer would only involve pre-trial proceedings, and since Taylor has now ruled on the merits and marked the case closed, this issue may have become moot, at least if her ruling withstands appeal.

There were two main facets of her ruling: she found the intercepts of calls involving persons inside the U.S. to be invalid, and enjoined those intercepts, but she found that the government’s “state secrets privilege” required that she dismiss the lawsuit so far as it sought to bar NSA from engaging in “data-mining” of international calls and e-mails.

In finding the basic program invalid as it reaches domestic communications, Judge Taylor rejected the government’s assertion of the “state secrets privilege,” saying she could rule on the program’s legality based solely on public statements by White House and other government officials describing the spying program. She did agree that the government had properly asserted that privilege, and that it did apply to this case. But she found that it did not apply to the domestic intercepts, concluding that the challengers “are able to establish a prima facie case [of illegality] based solely on…public admissions regarding” the program.

She noted that, in those admissions, federal officials have said the program exists, that it operates without a court-approved warrant, and that it targets international communications with one party outside the U.S. believed to have ties to Al Qaeda. “As the government has on many occasions confirmed the veracity of these allegations, the state secrets privilege does not apply to this information,” Taylor decided.

The challengers here — academics, journalists and lawyers — have established, she found, that their communications with overseas contacts, including some in the Middle East, “would be monitored” under the program. And, she added, they have shown that, because of the eavesdropping, they have been harmed, because individuals overseas who previously communicated with them by telephone or e-mail will no longer do so. Moreover, she found that the challengers had to spend added amounts on travel to meet with clients or other contacts.

She found that the government would be able to defend itself without risking the exposure of state secrets, because of the widespread admissions about the eavesdropping. The government has been defended the program’s legality publicly, and doing so without revealing any secrets, Taylor said.

In her rulling on the 1978 law governing electronic eavesdropping of foreign intelligence, Taylor said that the law provides the “exclusive means” for such wiretapping of U.S. individuals — it must be done with a warrant. While she noted that the law involves a number of concessions to Executive Branch needs, she said those “have been futile. The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented wihout regard to FISA” and more stringent domestic controls on eavesdropping under the Safe Streets Act of 1968.

In finding that the NSA program of intercepts of domestic communications is also unconstitutional, the judge remarked: “The President of the united States, a creature of the same Constitution which gave us these [First and Fourth] Amendments, has undisputedly violated the Fourth by failing to procure judicial orders as required by FISA, and accordingly has violate the First Amendment rights of these plaintiffs as well.”

Taylor also found that the NSA program violates the constitutional concept of separation of powers. Relying on Justice Robert H. Jackson’s separate opinion in the 1952 Steel Seizure case (Youngstown Sheet & Tube v. Sawyer), she found that President Bush’s powers were at the “lowest ebb” because he was acting in opposition to the expressed will of Congress.

“In this case, the President as acted, undisputedly, as FISA forbids. FISA is the expressed statutory policy of our Congress. The presidential power, therefore, was exercise at its lowest ebb and cannot be sustained….In this case, if the teachings of Youngstown are law, the separation of powers doctrine has been violated….These secret authorization orders [for the NSA program] must…fall.”

In a further rejection of the government’s legal defense of the program, Judge Taylor found that the 9/11 Resolution (the Authorization for the Use of Military Force) did not give the president the authority to defy either the FISA law or the Constitution. The FISA law is “highly specific,” she said, while the Resolution “is utterly general.”

Citing the Supreme Court’s first war on terrorism decision, Hamdi v. Rumsfeld in 2004, the judge said that “under Hamdi, the Constitution of the United States must be followed.” So, even if the Resolution overrode all other statutes, she concluded, the NSA program is invalid under the Constitution.

Finally, on the Constitution, Taylor turned aside the government argument that Article II of the Constitution gives the president the “inherent power” to conduct the spying program. “There are no hereditar Kings in America and no powers not created by the Constitution,” she wrote. “So, all ‘inherent powrs’ must derive from that Constitution.” Again citing Hamdi and Youngstown, she said, so the “inherent powers” claim “must fail.”