NSA Surveillance Program Ruled Unconstitutional
A federal judge has struck down the controversial NSA warrantless interception program.
A federal judge ruled Thursday that the government’s warrantless wiretapping program is unconstitutional and ordered an immediate halt to it. U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency’s program, which she says violates the rights to free speech and privacy.
Obviously, hers won’t be the final word on this.
UPDATE: Opinion here [PDF].
Paul Kiel provides excerpts. It’s pretty straightforward, although it has more editorializing than one expects of a district court judge. Indeed, written opinions are pretty unusual at that level.
Kiel cites this from p. 40:
The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.
We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no power not created by the Constitution. So all “inherent power” must derive from that Constitution.
That strikes me as a strawman of the executive’s position here. For one thing, the concept of “inherent power” dates, in the present context, from the administration of George Washington. It is not a novel thing advanced by the Bush team. It’s also not clear what First Amendment rights are supposedly in controversy. The issues are whether the executive’s interpretation of FISA was correct and whether, having informed the requisite legislative committees, it could bypass FISA’s strictures during time of grave national emergency. That’s not a slam dunk, although my preference is for checks and balances to hold under all but the most exigent of circumstances. Given that FISA essentially allowed the executive to reverse the traditional order of things–doing the search and then obtaining a warrant–it’s not clear that such exigency existed here.
Kevin Drum is right, though, when he says, “Obviously this will be appealed, and may soon be made moot by new legislation in any case.” (He follows that with “But it’s still encouraging that at least a few judges can still make sensible rulings these days.”) Indeed, I’m surprised it has taken so long to come to an accord on matching the law with present circumstances.