As everyone knows, today District Judge Anna Diggs Taylor of the Eastern District of Michigan declared Bush's NSA surveillance program unconstitutional in a variety of different respects and issued a permanent injunction barring the President from conducting further warrantless surveillance pursuant to the program. While I wholeheartedly agree with the general result, the court's opinion and reasoning are weak in a variety of ways, and given the magnitude of the opinion and the efforts that will be made to undermine it, I fear that Judge Diggs Taylor has, in the long run, undermined those of us who have believed the NSA program is illegal since its existence was revealed several months ago.
Standing
As I said, there are a variety of rather glaring flaws in the opinion, and the first one is in the court's analysis of the plaintiffs' standing to bring the suit. The court correctly recites the Supreme Court's parameters for Article III standing as stated in Lujan and Friends of the Earth, namely that the plaintiffs must demonstrate (1) that they have suffered an "injury in fact;" (2) that said injury is causally related to the conduct complained of; and (3) that the injury suffered is likely to be redressed by a favorable decision.
Where the court's analysis falls short is the third prong of the standing analysis. The plaintiffs persuasively allege injury related to the NSA program; attorneys and journalists who, in the course of performing their professional duties, must contact persons whose communications are monitored by the NSA have had substantial difficulty doing so since the NSA program was revealed. However, it is incredibly unclear how the court's decision today redresses that injury in anything other than the very short term. After all, should the NSA continue the program within the parameters of FISA, all of the same difficulties would exist for the plantiffs--likely targets of surveillance would be reluctant to speak over the phone or via email.
The court's apparent rejoinder to this argument--that under FISA the plaintiffs would at least have notice that surveillance was occurring--has no apparent basis in the law. To the contrary, FISA provides that the court order allowing surveillance is ex parte (that is, directed to the government alone), meaning that the targets of such surveillance receive no notice at all. As a practical matter, it is obvious that no notice should be given under FISA, given that notice would render the surveillance useless. The main benefit of FISA is not that it provides notice, but rather that it requires prior judicial review to determine if a proposed surveillance operation is permissible under the terms of the statute.
In short, today's opinion does not appear to satisfy the third prong of the Article III standing requirements.
The Fourth Amendment
In the course of finding the NSA program "obviously in violation of the Fourth Amendment," the court provides precious little analysis to support its conclusion and does not specifically address any of the most persuasive (albeit, imo, ultimately insufficient) arguments in the government's favor. Quoting from United States v. Katz, the court notes the general rule that warrantless searches are unreasonable unless they fall within one of the exceptions to the warrant requirement established by the Supreme Court over the years. Well and good, but the court never mentions what those exceptions are, whether any of them might apply in the case, and why none of the exceptions do in fact apply to the case. Most obviously, given that exceptions exist for "exigent circumstances" searches (including instances in which the target of the search is likely to escape or disappear and in which the target is likely to pose a significant risk to public safety), which at first glance could be seen to apply to the NSA program, it would have been desirable for the court to articulate the reason(s) why no exception to the warrant requirement applies here.
Indeed, the opinion so glosses over the exceptions to the warrant requirement as to make it appear, at least to those not well-versed in the morass that is Fourth Amendment jurisprudence, that absent a warrant any search or seizure is "unreasonable" under the Constitution. That is, of course, not true, and over the years the Supreme Court has carved out a litany of exceptions to the warrant requirement. Even more glaringly, however, is the court's refusal to engage the argument that the Fourth Amendment simply does not apply to the President's wartime power to conduct foreign surveillance as Commander-in-Chief. This argument ultimately fails, for reasons that have been well-explained elsewhere. However, the fact that the court simply ignored one of the Administration's main defenses of the NSA program is going to be a problem when the case is appealed to the Sixth Circuit.
First Amendment
I don't really know where to begin with the court's First Amendment analysis because, frankly, it makes no sense. The court quotes several old First Amendment cases which do not, on their face, apply to the NSA surveillance case, notes that the government may not regulate speech absent a compelling governmental interest, and then jumps to the unsupported conclusion that the institution of the NSA program violated the plaintiffs' First Amendment rights.
Most obviously, the NSA program is not a "regulation" of "speech" at all. It does not, in and of itself, restrict the speech (even when broadly construed to include associational rights) of anyone, even the targets of NSA surveillance. At most, knowledge of the program's existence has resulted in a certain "chilling" effect with respect to the plaintiffs' communications. That effect, however, does not transform the NSA program into an impermissible speech restriction any more than run of the mill "time place and manner" restrictions (all of which more obviously affect speech) do. Indeed, certain speech can be prohibited outright if it will incite imminent lawless action. Suffice it to say that attempting to shoehorn the problems with the NSA program into a First Amendment paradigm creates an uneasy fit at best.
Separation of Powers, Article II Power, FISA's Constitutionality
With regard to these aspects of the opinion, I cannot improve on what Professor of Constitutional Law Jack Balkin observed:
Finally, the court seems to be very weak in its reasoning about the separation of powers. It does not even cite the recent Hamdan decision, which is probably the most relevant decision, resting its arguments primarily on the 2004 Hamdi decision. It also seems confused about what constitutes a violation of separation of powers. If the AUMF did in fact amend FISA, the government has a very strong argument that it falls into category one-- maximum executive power-- and not category three-- minimum executive power-- under the Youngstown analysis. The court does not seem to deal with the best version of the government's arguments. I think those arguments fail, for reasons that Marty and I, among others, have elaborated. But I must say that the court's analysis is not very strong. It depends heavily on the fact that the President has violated the First and Fourth Amendments, which, I think, are the weakest arguments against the program. If those arguments go away, the separation of powers argument it offers is not very good, although in fact there are very good arguments for why the program does in fact violate the separation of powers, as well as FISA itself. The fact that the court does not bother to meet the government's suggestion that FISA is unconstitutional (to the extent that it limits executive power) is also quite unwise, in my view. Indeed, I'm mystified by the court's refusal to draw on well publicized debates over the legality of the program between Justice Department officials and legal academics and commentators that rehearses the best arguments pro and con, or, for that matter, the reasoning of the Supreme Court's Hamdan decision, handed down this June, which is, in my estimation, precisely on point.
Given that today's decision is certain to be appealed to the Sixth Circuit (and then the Supreme Court, though the latter may decline to review the case), today's opinion should not be of much comfort to opponents of the NSA's program. Its conclusory nature and its failure to address in detail the arguments for and against the program will simply lead to confusion and perhaps even full-scale relitigation of the issues on appeal. More damagingly, today's opinion has left ample room for attack by supporters of the NSA program, if and when they move beyond character assassination of Judge Taylor.