As Armando notes in his
front page story, the
New York Times is now reporting that at Bush's behest, the NSA has conducted widespread warrantless electronic surveillance of American citizens.
As has also been noted by Armando, myself, and others, this situation closely parallels the Supreme Court case of Youngstown Sheet and Tube v. Sawyer, in which the Court ruled that if, in the legislative history of an act, Congress examines and decides in the final legislation against granting a particular power to the Executive Branch, that power is effectively denied to the Executive, and if the Executive assumes that power, it is acting extralegally.
I say we sue the bastards in a massive class action. How we do that and what obstacles such a suit might face are detailed after the break.
As noted by
Tom Daschle in a Washington Post OpEd that most of us have probably read by now, Congress specifically refused to "add the words 'in the United States and' after 'appropriate force' in the agreed-upon text" of the Authorization for the Use of Military Force granted to the administration following September 11. Thus, this situation almost precisely follows the fact pattern of
Youngstown
Aside from, perhaps, Marbury v. Madison, law doesn't get very much more settled than Youngstown Sheet and Tube v. Sawyer. As I said in a comment yesterday, it's so much settled law that I really doubt even the Roberts Court would overturn it. If Youngstown is overturned, it effectively removes all checks on the Executive acting extralegally. Government by decree and the dissolution of Congress are the next logical steps.
If the administration is acting extralegally in authorizing warrantless surveillance, a private cause of action, i.e., a lawsuit against the Government for money damages is authorized by Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Now, all we need is a case that would force the issue at the Supreme Court level. With this morning's revelations that the NSA essentially monitored ALL email and ALL international telephone calls, potentially anybody who uses email or has made an international telephone call has what lawyers call "standing" to bring such a case against the Federal Government for violation of their Fourth Amendment rights. Surely ACLU lawyers are working over the Christmas holiday to prepare such a Bivens case as we speak. It would be a truly massive class action. If they're really monitoring all international telecommunications traffic and all email, that's a class consisting of potentially almost all of the country.
The broad discovery allowed by the Federal Rules of Civil Procedure in such a case would extend to gathering information from the administration and the NSA as to the scope of the monitoring and the nature of the information gathered. The DOJ would doubtlessly attempt to invoke the military and state secrets privilege to prevent disclosure of such material. This would then set up a situation in which the judge has to review the evidence in camera and decide if the privilege applies.
The case on point here is Ellsberg v. Mitchell, 709 F.2d 51 (D.C. Cir. 1983). The opinion is not online for free, apparently (link it if you find it, please), but it is certainly on Westlaw. The crux of the case law is that the invocation of the privilege is proper when disclosure of the material would "either enable a sophisticated analyst to gain insights into the nation's intelligence-gathering methods and capabilities or would disrupt diplomatic relations with foreign governments."
Because "of the broad sweep of the privilege, the Supreme Court has made clear that '[i]t is not to be lightly invoked.' Thus, the privilege may not be used to shield any material not strictly necessary to prevent injury to national security; and, whenever possible, sensitive information must be disentangled from nonsensitive information to allow for the release of the latter."
Ultimately, the court decides based on its in camera examination of declarations and underlying evidence. However, if the plaintiff can demonstrate that s/he was overheard in warrantless surveillance, the burden is then on the government to demonstrate the propriety of the surveillance.
It is possible, as several courts have concluded, see note 61 supra, that the importance of preserving the power of the executive to act swiftly and vigorously to protect national security may override, in the context of taps on foreign agents, the potent considerations underlying the warrant requirement. But those considerations themselves are in no way diminished. Accordingly, even assuming that the warrant requirement may give way in this special context, there is no reason to relieve those who authorize and conduct such taps of the burden of showing that they come within the exemption.
That conclusion is reinforced by analysis of the probable effects of the alternative rule-namely, that, upon allegation by the government that the wiretaps were on foreign agents and therefore did not require judicial approval, the burden shifts to the victims of the taps to disprove the government's contention. In many such situations, the government would be able (as it has been here) to refuse to disclose any details of the circumstances surrounding the surveillance by invoking its state secrets privilege. The result would be to deny the plaintiffs access to all of the information they need to dispute the government's characterization of the nature and purpose of the surveillance. And the net effect would be to immunize, not only all wiretaps legitimately falling within the hypothesized "foreign agent" exemption, but all other surveillance conducted with equipment or under circumstances sufficiently sensitive to permit assertion of the state secrets privilege. We find such consequences unacceptable. In summary, we see no reason in the present context to suspend the general rule that the burden is on those seeking an exemption from the Fourth Amendment warrant requirement to show the need for it. Accordingly, to make out a prima facie case of a constitutional violation, the plaintiffs need not disprove the defendants' allegation that their actions are excused by the "foreign agent" exemption; rather, the defendants must prove their contention. As the defendants have not yet made such a showing in the instant case, dismissal of the claims of the five plaintiffs whom the defendants have acknowledged overhearing would be improper.
It would indeed be interesting litigation. And even if ultimately successful, the invocation of the state secrets privilege to attempt to shield evidence of warrantless surveillance of hundreds of millions of Americans would become a huge political issue which would shine such a hugely unfavorable light on the administration that it could probably not withstand the consequences. Impeachment would become a mainstream idea, and libertarian Republican Members of the House would defect like rats leaving a sinking ship.
I say we have nothing to lose.