Thursday, August 17, 2006

ACLU Strikes Again

The ACLU and at least one federal judge seem to be confused about the "life" part of "life, liberty, and the pursuit of happiness":

A federal judge in Detroit ordered a halt to the National Security Agency's warrantless surveillance program, ruling for the first time that the controversial effort ordered by President Bush was unconstitutional.

U.S. District Judge Anna Diggs Taylor wrote in a strongly-worded 43-page opinion that the NSA wiretapping program violates privacy and free-speech rights and the constitutional separation of powers between the three branches of government. She also found that it violates a 1978 law set up to oversee clandestine surveillance.


Ruling in a case brought by the American Civil Liberties Union and other advocacy groups, Taylor, 73, wrote that "public interest is clear, in this matter. It is the upholding of the Constitution. . . . "

"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," she wrote. " . . . There are no hereditary Kings in America and no powers not created by the Constitution. So all 'inherent powers' must derive from that Constitution."

I'll need to read the case, but a couple of quick points.

First, the ACLU is going to get people killed with some of these arguments. I know they believe they are preserving something very important, but there are times their intransigent refusal to ever err on the side of national security is breathtaking. They press every case, regardless of the costs and benefits, and I wonder if anyone in that organization is capable of acknowledging a middle ground between the completely neutered executive they seek and the robust investigations the Bush administration pursues.

Second, and I'll need to go back to some old law school homework to be sure, I think that the judge's interpretation of "inherent powers" smacks a little of sophistry. It's my recollection that "inherent powers" means those powers which follow from enumerated powers, and that those have always included powers necessary to the executive's role as commander-in-chief and have always been interpreted broadly. The NSA powers may not be included among those that are inherent, but the judge seemed to come very close to saying that there is no room at all for reasonable inference regarding inherent powers, thus creating a standard so strict that, in practice, no inherent powers exist at all. I'll need more time with the issue to be sure I'm not reading too much into that portion of the decision, and that I'm remembering Constitutional Law correctly in the first place.

Third, and my track record is admittedly weak recently, my prediction is that this goes to the Supreme Court and the majority decision is a rambling, incoherent, self-gratifying discourse by Justice Kennedy, one that explains nothing, aids no national interest, and generally leaves everyone irritated and confused. I predict this will be the case regardless of which side actually wins the decision.

UPDATE: Having quickly read the decision and perused some of the commentary, I'm confident my second point was generally correct. The courts have held warrantless searches in the interest of national security to be constitutional. See Power Line for a quick run down.

Also through Power Line, a story about the tyrants in Tehran at Vital Perspective. What the mullahs are doing in that country is real tyranny, and as extreme civil libertarians start to get agitated about the NSA program, it's useful to remind ourselves what real oppression looks like. What we are having in America is a disagreement about executive power; what Iranians are suffering is totalitarianism. The two are rather different.

One last point about the case for now: the plaintiffs, a bunch of journalists and professors represented by the ACLU, was found to have standing because warrantless intercepts potentially threatened their ability to do their jobs. Seriously! I'm supposed to risk my life when I get on a train or airplane so some writer can pay his mortgage. To hell with their jobs -- the world needs ditch-diggers too.

UPDATE 2: The court said the following in its decision, on page 13:
It is undisputed that Defendants have publicly admitted to the following: (1) the TSP exists; (2) it operates without warrants; (3) it targets communications where one party to the communication is outside the United States, 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.

It is at this point that we can begin to question the judge's own respect for separation of powers. It is undoubtedly the province of the Executive to determine when a foreign nation or organization is an immediate threat to American lives, and the Bush administration has undoubtedly done so in the case of al Qaeda. Yet that finding is insufficient for the judge in finding the plaintiff's claim is justiciable, because she follows that statement with this:
Plaintiffs' declarations state undisputedly that they are 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 representation of their clients. In addition, Plaintiffs have the additional injury of incurring substantial travel expenses as a result of having to travel and meet with clients and others relevant to their cases.

It cannot be that a party is injured by being separated from an enemy against whom the Executive, with the support of Congress, has declared war. It is not the place of the Judiciary to undeclare a war, and turn an avowed enemy of the U.S. into an ordinary corporate individual, one with whom the plaintiffs can have a kind of commercial relationship.

The judge does consider the claims of injury to be somewhat lacking, but eventually finds the plaintiffs have standing because without so finding, there would be no way for the courts to speak to the Executive's behavior. Basically, she finds the plaintiffs have standing so that she, on behalf of the Judiciary and to preserve the separation of powers, can undo the NSA wiretaps.

Following this, the judge declares the wiretaps "obviously" unconstitutional under the 4th amendment, a matter that the past decisions would somewhat dispute. Having not explained why any of the well-founded exceptions to the warrant requirement do not apply, we can only conclude she found some that could and neglected to share them with the public. I think the 6th circuit will explain to the lower court just how "obvious" the law really is.

It's smart at this point to remember two points made by different writers at the Volokh conspiracy. First, that lower court rulings like this really are "briefs to a higher court." This is not a ruling that even the judge herself necessarily expects to stand in full. It is merely this judge's assertion of constitutional law. A second point follows, in a way, from the first. This judge may have simply wanted to get her arguments in before Congress enacted a law that specifically allowed the kind of surveillance performed by the NSA, thus rendering much of her decision moot.

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