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Federal Judge Rules Bush Surveillance Program Unconstitutional

By mmguestblogger  •  August 17, 2006 12:22 PM

Scroll for updates, injunction posted44-page opinion posted

ABC has it on its Breaking News bar.

Detroit Free-Press has the story:

A federal judge in Detroit has ruled that the Bush administration’s warrantless surveillance program violates the Constitution.

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.

The American Civil Liberties Union filed the lawsuit on behalf of journalists, scholars and lawyers who say the program has made it difficult for them to do their jobs. They believe many of their overseas contacts are likely targets of the program, which involves wiretapping conversations between people in the U.S. and people in other countries.

The government argued that the program is well within the president’s authority, but said proving that would require revealing state secrets.

The ACLU said the state-secrets argument was irrelevant because the Bush administration already had publicly revealed enough information about the program for Taylor to rule.

Update: Judge ordered immediate halt to the program.

A federal judge ruled Thursday that the government’s warrantless wiretapping program is unconstitutional and ordered an immediate halt to it.

Anna Diggs Taylor’s bio— a Carter appointee.

A Free Press profile of her from early August, with these observations about the ruling:

Although Taylor is a liberal with Democratic roots and defended civil-rights workers in the South in the 1960s, people who know her say she will follow the law — not her politics — in deciding the case…

But even if Taylor harpoons the spying program, experts said, the decision likely would be overturned by the U.S. 6th Circuit Court of Appeals.

“Given the composition of the 6th Circuit and its previous rulings in related areas, it seems more likely to favor national security over civil liberties if that issue is squarely presented,” said Carl Tobias, a law professor at the University of Richmond in Virginia. “And that’s what this case is all about.”

H/t RCP Blog

Update: Here’s the opinion. (Correction: Looks like the whole opinion isn’t up, just two pages of an injunction order.) Lawyers? Where ya at?


For the reasons set forth in an accompanying Memorandum Opinion, Plaintiffs’ Motion for Partial Summary Judgment [Doc #4] is GRANTED. Defendants’ Motion to Dismiss, or, in the Alternative, for Summary Judgment [Doc #34] is GRANTED in part and DENIED in part.

IT IS HEREBY ORDERED that Defendants, its agents, employees, representatives, and any other persons or entities in active concert or participation with Defendants, are permanently enjoined from directly or indirectly utilizing the Terrorist Surveillance Program (hereinafter
“TSP”) in any way, including, but not limited to, conducting warrantless wiretaps of telephone C L O S E D and internet communications, in contravention of the Foreign Intelligence Surveillance Act (hereinafter “FISA”) and Title III;

IT IS FURTHER ORDERED AND DECLARED that the TSP violates the Separation of Powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution, the FISA and Title III;
IT IS ALSO ORDERED that Defendants’ Motion for Summary Judgment is GRANTED with respect to Plaintiffs’ data-mining claim and is DENIED regarding Plaintiffs’ remaining claims;

IT IS ALSO ORDERED that Plaintiffs’ Motion for Partial Summary Judgment is
GRANTED in its entirety.

Aha, I am silly. Here’s the 44-page opinion.

Kim Priestap’s following this, as is Ankle Biting Pundits.

And the ever-quotable Ace:

The have-it-both-ways Democrats have been claiming for months they’re gung-ho on national security, and don’t object to the NSA program in principle, they merely wish the President to “comply with the law” and seek Congressional authorization for the program.

Well, Congress has had months to pass such leglislation.

Where is it?

On the heels of the SkyBomb busts, ably assisted by American signals intelligence (i.e., NSA intercepts), this judge has ruled that American efforts in this regard must stop immediately.

I don’t question her timing. I question her sanity.

Update: Bring in da noise, bring in da snark.

Thank you Judge Taylor for shutting down the international wiretapping program. I feel so much safer knowing that my Constitutionally protected right to chat with Ayman al Zawahiri about the weather in Waziristan is safe in your hands. Thank you for saving me from the evil hands of George W. Bush. Thank you. Thank you. Thank you.

I can finally breathe again after being oppressed for so long.

Update 2:46pm: Fox reports that the Justice Department has appealed the decision, as expected. No story yet.

Update 2:58pm: K-Lo has the statement from DOJ.

Update 5:56pm:
Then, Goldstein Monty Python-ed the decision. And there was much rejoicing.

Even still, it’s amazing that we’ve reached the nuance point where only by revealing secrets can we show the the secrets in question should not be revealed, lest they damage programs meant to protect us from attacks, which only work while details of how they work remain secret.

Perhaps we can just tie stones to the NSA program, put it in a lake, and see if it floats. If it does, it is clearly unconstitutional and should be hanged. If it drowns from the weight of its own revealed legality, everyone will know for certain that it wasn’t, in fact, unconstitutional. Which, helluva lot of good that does us, sure.

Update 10:39pm:
You have broken my heart, Mr. Burgundy. You have broken my heart.

Retro Malkin:
Newsflash: NSA Doing Its Job
Finally: Justice Dept. Opens NSA Leak Probe
In Defense of the NSA
The New York Times Strikes Again
NSA and the Law: What the Times Didn’t Print
Red Alert: Chicken Littles on the Loose
Sorry NYT, America is OK With NSA

Posted in: FISA,George W. Bush

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Categories: FISA