August 17, 2006

Judge Rules Terrorist Spying Unconstitutional

U.S. District Judge Anna Diggs Taylor in Detroit ruled the NSA violated the First and Fourth Amendments with their warrantless terrorist surveillance.

Eugene Volokh has some quick analysis here, here, and here. Eugene agrees with Orin Kerr's thoughts from last year that FISA is the key to the NSA program's legality:

So, I think (as Orin's post suggested), the real foundation of this decision is FISA. If Congress prohibited this sort of eavesdropping via FISA, and didn't carve out an exception under the AUMF, then the program is indeed illegal (since I don't think the President's inherent power argument much works here, even as to violations of a statute). If FISA doesn't apply, though, then the program is permissible, because there's no First or Fourth Amendment violation here.

Opponent of the NSA program Jack Balkin even thinks Judge Diggs' ruling isn't so hot:

It is quite clear that the government will appeal this opinion, and because the court's opinion, quite frankly, has so many holes in it, it is also clear to me that the plaintiffs will have to relitigate the entire matter before the circuit court, and possibly the Supreme Court. The reasons that the court below has given are just not good enough. This is just the opening shot in what promises to be a long battle.

KipEsquire at Overlawyered sees Judge Diggs' Fourth and First Amendment analysis as weak. Her strength was on separation of powers.

While the ACLU and their Democratic allies are cheering they should realize they're handing a political issue to the GOP in the fall elections. The Democrats still don't have a coherent national security strategy. It amounts to "President Bush is screwing up Iraq, a war we shouldn't be in anyway so let's bring our troops home; and, oh by the way, Osama bin Laden is still running around, but let's ignore that British bombing plot that used intelligence methods Judge Diggs would find unconstitutional. American public, please trust us with defending the nation against the Islamist terrorist hordes."

Another rallying cry for the GOP base is the fear a Democratic-controlled House of Representatives would impeach President Bush. Rep. John Conyers would run the Judiciary Committee and has put in plenty of work preparing to impeach Bush. Think it wouldn't happen? Many Democrats didn't think the GOP would impeach President Clinton over lying to a grand jury about a sex scandal. Karl Rove is drooling with the opportunity Judge Diggs laid before him.

"Judge Nixes Warrantless Surveillance"

"NSA Surveillance Program Ruled Unconstitutional"

UPDATE: The Justice Department has appealed Judge Diggs' ruling. The press release also states, "The parties have also agreed to a stay of the injunction until the District Court can hear the Department's motion for a stay pending appeal."

[via California Yankee]