A Stitch in Haste

I have perused the decision by a federal district judge in Michigan declaring the NSA warrantless wiretapping program to be in violation of both FISA and the Fourth Amendment and have some thoughts.

While the decision contains a wealth of flowery language reminiscent of, say, a post by a libertarian blawger, it is rather weak on actual analysis. On the other hand, what little analysis it contains is spot-on accurate.

Here's a summary of the decision's findings:

--The state secrets privilege is not applicable to the extent that the litigation requires no new discovery. In other words, the government cannot deny that "everybody already knows" about the NSA program, but it can refuse to disclose any further information beyond what is in the public domain. To the extent that the plaintiffs can proceed solely on that basis, they are permitted to do so. The challenge to the government's data mining operations was, however, quashed under the state secrets doctrine. (Translation: Without the "traitorous" reporting by the media, the NSA program — which the judge has found unconstitutional — would have been allowed to continue. Go figure.)

--The plaintiffs have standing to sue, mainly because their ability as journalists and scholars to communicate with foreigners has been hindered.

--The program violates the Fourth Amendment. This is by far the weakest part of decision and boils down to the judge saying "just because." Nominally the argument is: To the extent that the warrant requirement can be circumvented for special circumstances, the FISA framework is more than adequate to do so and must therefore be adhered to.

--The program violates the First Amendment. Also a very weak analysis. Basically a "chilling effect" argument premised on the nature of the "speech" being monitored. Not at all persuasive.

--Separation of Powers / AUMF / Article II. Here Judge Taylor is reading strictly from the civil liberties script, and fortunately so. She correctly applies the Youngstown framework (i.e., FISA controls and the President's power to circumvent it is "at its lowest ebb"), the Authorization of the Use of Military Force did not repeal or amend FISA by implication (because courts have always tried to avoid such constructions), and the Commander-in-Chief power cannot be plenary, even in time of war, since such a view offends the plain text of Article I and the Bill of Rights.

It's always good to have to wind at your back going into the appellate process, but we should expect much (but hopefully not all) of the decision to be reversed.

The case is ACLU v. Alexander, No. 06-CV-10204 (E.D. Michigan, August 17, 2006) (PDF - 44 pages). More thoughts from Glenn Greenwald.