WHEN STRUCTURE FAILS, LIBERTY IS ALWAYS IN PERIL: Legal Review of NSA Decision

ACLU, et al v. NSA. Et al         06 cv 10204                 Hon Anna Diggs Taylor

*"WHEN STRUCTURE FAILS, LIBERTY IS ALWAYS IN PERIL" Justice Kennedy*

This decision[1] is virtually a one-hundred percent victory for the plaintiffs.[2]  While President Bush has already dismissed this opinion seeking solace in his hope that the 6th Circuit Court of Appeals will reverse this decision[3], Judge Taylor has written a basic civics lesson within this decision.  She explains to President Bush that the document his administration has ignored in exercising these powers, the US Constitution, is the very same document that creates the Presidency of the United States[4].

Unsurprisingly, this decision is incredibly well-written and well-researched.  The lawyering performed on behalf of the plaintiffs in this matter must be commended, as my first-year law professor, Walt Oberer, taught the most important thing a lawyer can do when arguing his case to the Court is provide the Court with an easy peg to hang their hat on.

 In light of past cases wherein the Executive branch has been able to cite state secrets privilege to carry the day, the plaintiffs in this matter sought no discovery whatsoever, no document production, no interrogatories proposed and no depositions requested.  The attorneys relied solely upon the public statements of the Bush Administration to prove that the NSA wiretapping program violated the:

Separation of Powers Doctrine

Administrative Procedures Act

First Amendment to the US Constitution

Fourth Amendment to the US Constitution

FISA

Title III

And the Court decision found in favor of the Plaintiffs.

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.

       

Judgment and Permanent Injunction Order 8-17-06              

The Court found undisputed that since 2002, NSA has intercepted international telephone and internet communications of numerous people and organizations without benefit of warrant or other judicial approval and that President Bush has reauthorized this power over 30 times[5] in the past five years.  The Court further found that the various individual Plaintiffs had been specifically harmed in their practice of law, journalism and scholarship as the illegal wiretapping program had, and continued to, substantially chill and impair their constitutionally protected communications.

From labeling the Presidential power relied upon to being from the twilight zone[6] to referencing the star chamber[7], this decision is peppered with implicit condemnations at an administration that has made a mockery of the United States Constitution, the separation of powers and Fourth Amendment.

*STATE SECRETS PRIVILEGE*

Excellent strategic decisions of the Plaintiffs helped avoid the perils of the state secrets privilege that previously doomed the claim of an individual who challenged extraordinary rendition performed by this administration[8].

The state secrets privilege is an evidentiary rule developed to  prevent the disclosure of information which may be detrimental to     national security... the privilege belongs to the Government and        must be asserted by it.

                                                Slip op @ 3,4.            

This privilege is set into two distinct categories, the espionage claim and the `reasonable danger posed to national security' claim.  If the Government asserts the privilege, then the Court must determine whether the circumstances are appropriate for the claim of privilege.

Where there is a strong showing of necessity, the claim of    privilege should not be lightly accepted, but even the most       compelling necessity cannot overcome the privilege if the        court is ultimately satisfied that military secrets are at stake."  Slip op. @ 5, citing, United States v. Reynolds, 345    U.S. 1 (1953) (Unanimous Court decision by Rehnquist, CJ)

 

The Court took this opportunity to make its first slap at the administrations abuse of its executive authority and privilege,

Predictably, the War on Terror of this administration has produced a vast number of cases, in which the state secrets privilege has been invoked.  Slip op. @ 10.

Thereafter, the Court rules that this privilege claim falls under 2nd type of State Secrets claim but fails to protect the NSA wiretapping program because the Plaintiffs have not sought any additional discovery but simply rely upon the public statements of this administration to prove the elements of their claims.  

The Court notes:

The Bush Administration has repeatedly told the general public that there is a valid basis in law for the TSP."  Slip op. @ 14, citing, 12/17/05 Radio Address of President Bush.

Footnote 9: "I authorized the National Security Agency, consistent with U.S. Law and the Constitution, to intercept the international communications of people with known links to Al Qaeda and related terrorist organizations."

In fact, Judge Taylor set out that the defendants filed both public affidavits of John Negroponte, Director of National Intelligence, and NSA Major General Richard Quirk, as well as "ex parte and in camera versions of its brief along with other classified information" attempting to further buttress the Government's assertion of the states secrets privilege.   Slip op. @ 11.

After finding that the Government had followed the appropriate procedure to assert the states secret privilege, the Court analyzed whether the `classified information' was at all necessary to defend the claims of the plaintiffs.   The plaintiffs asserted that no secret information was needed to prove their claims, but the claims could be ruled upon solely based on the public disclosures and admissions of this administration.  

Judge Taylor agreed:

the court has reviewed the classified information and is of the opinion that this information is not necessary to any viable defense to the" wire tapping program of the NSA. Slip op. @ 14.

 

The Court found that the administration had publicly admitted that:

(1)  the (wire tapping) program exists;

(2)  it operates without warrants;

(3)  it targets communications where one party to the communication is outside the U.S., and the government has a reasonable basis to conclude that one party to the communication is a member of Al Qaeda, affiliated with Al Qaeda, or a member of an organization affiliated with Al Qaeda, or working in support of Al Qaeda.

As the Government has on many occasions confirmed the veracity of these allegations, the state secrets privilege does not apply to this information... Plaintiffs are able to establish a prima facie case based solely on Defendants' public admissions."

Slip op. @ 13.

The Court also found that the Plaintiffs had satisfied the need to show actual harm as well as a causal connection between the harm suffered and the program being challenged:

The Plaintiffs were able to establish that they were individually suffering `real and concrete harm' as they were

`stifled in their ability to vigorously conduct research, interact with sources, talk with clients and, in the case of the attorney plaintiffs, uphold their oath of providing effective and ethical representations of their clients... Plaintiffs would be able to continue using the telephone and email in the execution of their professional responsibilities if the defendants were not undisputedly and admittedly conducting warrantless wiretaps of conversations.""  Slip op. @ 14, 21.

Again, the Court references the bad faith shown by this Administration:

the court finds Defendants' argument that they cannot defend this case without the use of classified information to be disingenuous and without merit."  Slip op @ 15.

And so begins Civics 101, from a Federal Judge to a Presidential Administration that has acted as,  and stated that, it operates above and beyond the law.

it was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights.  The three separate branches of government were developed as a check and balance for one another.  It is within the court's duty to ensure that power is never "condensed into a single branch of government.  We must always be mindful that when the president takes official action, the Court has the authority to determine whether he has acted within the law.  'It remains one of the most vital functions of this Court to police with care the separation of powers.  When structure fails, liberty is always in peril.' Slip op. @ 24 (internal citations omitted) (emphasis added).

            Interestingly, after finding the state secrets privilege inapplicable and that the Plaintiffs did indeed present a case or controversy,  Judge Taylor shows her hand in finding in favor of the Plaintiffs.  Only then does the Court recite its evaluation of the substantive aspect of most of the claims.  The Court follows with historical need for:

1. Congressional oversight of Governmental Electronic Surveillance;

2. the Fourth Amendment; and

3. the Separation of Powers;

 while disabusing this Administration of its self-professed notion that it's inherent powers far exceed those of Congress and the limits placed on the executive office by the Constitution.

HISTORY of ELECTRONC SURVEILLANCE

In 1967, Justice Stewart wrote for the Supreme Court,

`searches conducted without prior approval by a judge or magistrate were per se unreasonable under the fourth amendment." Slip. Op @ 25, citing, Katz v. US, 389 US 347 (1967)(emphasis added).

Reacting to this opinion, Congress, in 1968, enacted Title III of the Omnibus Crime Control Act that required warrants and applications under oath for permission to make electronic interceptions of various communications.  In fact, this statute allowed for post-interception warrants to be issued in certain emergency situations.

In 1976, the Congressional "`Church Committee'  disclosed that every president since 1946 had engaged in warrantless wiretaps in the name of national security, and that there had been numerous political abuses."  Slip op. @ 26.

In 1978, in response, Congress enacted FISA.

Subsequently, Title III was amended to state that

the FISA of 1978 shall be the exclusive means by which electronic surveillance of foreign intelligence communications may be conducted." Slip Op @ 26.

In fact, for various emergency reasons, FISA authorizes the government to take an extension of time to conduct interception of communications before applying for post-interception authority.

FISA does not bar the administration's NSA program.  It just requires that this conduct eventually pass judicial muster through a warrant process.  In fact, FISA allows these warrant applications to be posed to a secret court in order to safeguard the secrecy of the program for which the warrant is being requested.

            *THE FOURTH AMENDMENT*

As the Civics Lesson continues, the Judge explains, with Revolutionary War perspective, the initial need and desire for the founding members of this great country to pass the Fourth Amendment:

"to assure that Executive abuses of the power to search would not continue in our new nation."  Slip op @ 30

Quoting Justice Powell, in what may well be a direct instruction to President Bush;

The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates.  Their duty and responsibility are to enforce the laws, to investigate, and to prosecute.  But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks.  The historical judgment, which the fourth amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlooking potential invasions of privacy and protected speech.  Slip op. @ 30, quoting, US v. US District Court, 407 US 297 (1972).

Judge Taylor then hands President Bush' advisers an easy-to-explain, four word definition for the Fourth Amendment:

 

reasonableness in all searches' Slip op. @ 31.

As well as a simple explanation of why the Executive Powers do not exceed the Constitution:

"the wiretapping program... has undisputedly been implemented without regard to FISA and of course the more stringent requirements of Title III, and obviously in violation of the Fourth Amendment.

The President of the United States is himself created by that same Constitution."  Slip op. At 31

*SEPARATION OF POWERS*

Judge Taylor then has her Civics class move to the text known as the Federalist Papers.

 

the accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."  Slip op. At 34 citing Federalist 47, James Madison.

Citing a historically important decision concerning executive power when the Supreme Court ruled that the Constitution did not authorize the President to seize  steel mills, the Court examined Executive Power:

the powers of the President are not fixed, but fluctuate, depending upon their jujnctures with the actions of Congress."  Slip Op. @ 34, quoting, Youngstonw Sheet & Tube v. Sawyer, 343 U.S. 579 (1952).

 

 The Court decision explains the Executive Power in reference to three views:

President acted pursuant to express or implied authorizations:

power at maximum-zenith.

President acted in absence of Congressional authorization:

zone of twilight reliant upon only his own independent powers.

President acts incompatible with express or implied will of Congress:

power at lowest ebb, can only rely on his own Constitutional Powers

minus any Constitutional Powers of Congress over the matter.

Concluding this aspect of the civics class, Judge Taylor holds thatin this case the President has acted, undisputedly, as FISA forbids"[9] and therefore, the President is acting incompatibly with Congressional will, at the lowest end of his powers.

These secret authorization orders must , ... fail.  They violate the Separation of Powers ordained by the very Constitution of which this President is a creature." Slip Op. @ 37.

*AUTHORIZATION FOR USE OF MILITARY FORCE (AUMF)*

The Court then disabuses the Administration of the notion that the so called inherent powers exceed the US Constitution.  

"Although many cases hold that the President's power to obtain foreign intelligence information is vast, none suggest that he is immune from Constitutional requirements."  Slip op @ 41.

Citing recent Supreme Court precedent regarding enemy combatants, Hamdi v. Rumsfed,[10] the Court recognized the need for defense of our Country, but not at all costs, and certainly not at the cost of the rights and privileges created by the United States Constitution.

it is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely contested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. Slip Op. @ 39, quoting, Justice O'Connor, Hamdi @ 532.

Concluding this aspect of the civics lesson, the Court, perhaps tongue planted firmly in cheek, states[11]

 

`the Constitution of the United Stated must be followed ...  all `inherent powers' must derive from the Constitution."  Slip op. At 39, 40.

            CONCLUSION

This decision is concluded with a quote from Justice Warren:

Implicit in the term "national defense' is the notion of  defending those values and ideas which set this Nation apart... It would indeed be ironic if, in the name of  national defense, we would sanction the subversion of ... those liberties ... which makes the defense of the Nation worthwhile."  Slip op. @ 43 citing US v. Robel, 389 US 258 (1967)

[1] All page citations are to the Slip Opinion found here: http://www.mied.uscourts.gov/...

[2] The Court did find in favor of the defendants and dismissed one claim of the Plaintiffs concerning their `data-mining' claim. Due to state secrets privilege, nothing more was explained about this claim in the Court decision.

[3] President Bush said Friday he expects his administration will win its appeal of a judicial ruling finding the National Security Agency's warrantless domestic surveillance program unconstitutional. http://www.cnn.com/...

[4] Slip Op. @ 31, 37.

[5] Footnote 1 http://www.whitehouse.gov//news/releases/2005/12/20051219-2.html  "I've reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for so long as our nation is -- for so long as the nation faces the continuing threat of an enemy that wants to kill American citizens."

[6] "If he acted in absence of Congressional action, he was in a zone of twilight reliant upon only his own independent powers." Slip Op. @ 34.

[7] "This [First] Amendment, the very first which the American people required to be made to the new Constitution, was adopted, as was the Fourth, with ... the actions of the star chamber in mind."  Slip Op. @ 31.

[8] El-Masri v. Tenet, 2006 WL 1391390 (ED VA 5/12/06). In El Masri, the plaintiff, a German citizen of Lebanese descent, sued the former director of the CIA and others, for their alleged involvement in a program called extraordinary rendition.  The court dismissed the plaintiff's claims, because they could not be fairly litigated without disclosure.

[9] Slip op. @ 36.

[10] 542 U.S. 507 (2004) A US citizen may be held as an enemy combatant, but not without due process of law and not for indefinite detention for purposes of interrogation,

[11] The Court summarizes the Government's position 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."  Slip Op @ 40.


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