Here’s a case destined to be a Supreme Court case within the year. Today, Judge Anna Diggs Taylor of the Eastern District of Michigan ruled that the NSA’s domestic wiretapping and Internet surveillance program violates the First and Fourth Amendments and the doctrine of separation of powers. An appeal has reportedly already been filed. Stay tuned. American Civil Liberties Union et al. v. National Security Agency, et al., Case No. 06 CV 10204, Decided August 17, 2006.
President Bush has admitted in a radio address to the nation that in the wake of September 11th he instituted a program by his order that authorized the National Security Agency (“NSA”) to institute a surveillance program. This program was authorized to intercept telephone and Internet communications of individuals, both domestically and internationally, that are suspected of ties to Al Quaeda. No warrants or other other judicial approval were ever obtained. A secret presidential order authorized the program in 2002, and the White House admits that it has been extended over thirty times.
Plaintiffs are a group of American citizens whose professions require contact with individuals living in the Middle East, such as professors, journalists and lawyers. These persons have suffered harm in that these individuals have refused to correspond with the plaintiffs because of this program, requiring expensive and time consuming trips to the Middle East in order to conduct their legitimate business.
Defendants include the NSA and the Central Security Service,as well as the individual that serves as the head of both agencies.
Before the court were the government’s Motion to Dismiss based upon the theory of privilege preventing the disclosure of state secrets, as well as the Plaintiffs’ motion for partial summary judgment. It was partial because the complaint also addressed some data mining activities performed by the NSA on the information uncovered during the program that even the Plaintiffs conceded were likely protected by the state secrets privilege.
Judge Taylor ruled that the state secrets privilege does not bar the action because it has
already made enough details about the program public to make it clear that the program violates the federal laws governing surveillance as well as the First (free speech) and Fourth (freedom from unreasonable search and seizure) amendments to the Constitution.
The government argued that the Plaintiffs did not have standing to bring the action because they only had a fear of being subject to the spying program and could not allege actual harm. Plaintiffs argued they did have standing because of the concrete harm to their professional activities. The court agreed, noting that there are many cases which hold that substantial burdens placed upon a plaintiff’s professional activities are sufficient for there to be standing.
The Foreign Intelligence Surveillance Act (“FISA”), instituted in 1978, requires the Government to obtain a warrant before any domestic surveillance, while under certain exigent circumstances still allowing the Government the ability to conduct surveillance before obtaining a warrant provided that one is obtained within 15 days. Further, no program with domestic surveillance can continue for longer than 90 days before stopping. It was carefuly balanced to allow surveillance while still protecting the privacy of U.S. citizens.
Authorization for Presidential Actions
The Government argues that the Authorization for the Use of Military Force (“AUMF”), enacted seven days after the September 11, 2001 attacks on the World Trade Center, provides the authorization needed for the President’s order enacting the spying program which circumvents the FISA requirements. However, the act allows for the use of military force and does not explicitly cover intelligence. Even accepting the government’s argument that intelligence actions are implied, the court notes that it still would not allow a domestic surveillance program to continue for five years instead of the 90 days allowed for by FISA. Further, it would not authorize a program that has never requested a warrant in five years, far in excess of the 15 days required by FISA for the government to obtain a warrant.
Judge Taylor held that the Plaintiffs were entitled to summary judgment on its claims that the domestic surveillance program violated the First and Fourth Amendments, as well as the separation of powers doctrine and existing Federal law. She notes that even the when the Supreme Court recently examined the Government’s actions under the AUMF in enemy combatants being held in the HAMIDI decision, it held that the detainees are still entitled to their Fifth Amendment rights. Accordingly, if the AUMF does not trump the Fifth amendment, it should also not trump the First and Fourth amendment rights of U.S. citizens.
I believe this case is guaranteed to be before the Supreme Court within the year. I am
unsure whether the court’s justification for the separation of powers doctrine will survive an appeal, but the first and fourth amendment violations appear clear. It’s worth noting that we cannot lose sight of our constitutional rights even when we want to fight terrorism, or else we’re no better than them. While it would have been burdensome to follow the letter of the law, requiring a warrant for each and every individual covered by the program, but in today’s world of automated form generation it certainly was not impossible for some clerk to just mail merge a list of suspects with a form warrant. Accordingly, I do not buy the burden argument.