ACLU v. NSA (8-17-06)
Pres. Bush likes to proclaim that he has "inherent powers" outside the Constitution to do whatever he likes in violation of the Constitution as long as he can claim he's protecting us. He's going to save us even if he has to kill us, burn the village to save it, as the Vietnam saying went.
In order to find all the terrorists we're at war against, Pres. Bush ordered a warrant-less surveillance program that vacuum cleaned all calls, telephone and electronic (email) emanating from the U.S.
Teachers, lawyers, and journalists making overseas contact from within the U.S. were thus fair game to have their data mined in violation of the Fourth Amendment requirement of a search warrant based on individualized suspicion. Uncle Sam could read their mail under George W's massive eavesdropping program.
So the teachers, lawyers, and journalists all sued the president, and today they won in ACLU v. NSA et. al.
The U.S. District Court in Eastern/Southern Michigan (Detroit), Anna Diggs Taylor, J., held that
- the plaintiffs had standing to sue under Lujan, having alleged a concrete injury to their constitutional rights to be let alone and not spied on w/o warrant by government,
- the government retained the right not to disclose official secrets, but that
- the warrant-less eavesdropping program violated plaintiffs' First and Fourth Amendment rights, the FISA statute, the Administrative Procedures Act, and the Separation of Powers doctrine.
It's hard to violate that many constitutional and statutory rights as that in one fell swoop, but George W seems to have gone and done it.
The court told him flat out he's not a king, and if he were, he'd be a tyrant. See the opinion, especially the discussion of the claim of alleged "inherent power" of the president, the argument most fervently advanced by the Royalist faction surrounding the White House claim to Big Brother power to look in on what you think, write, and who you communicate with.
The main basis of this opinion is the Youngstown Steel case, discussed on this site here, which described and limited presidential power.
In Youngstown, Pres. Harry S Truman seized the nation's steel mills during the Korean War in order to maintain the production of tanks, guns, jeeps and ammunition in the face of a labor dispute in which the mills had locked out the steelworkers who were threatening a job action or strike.
The problem was that Congress had shortly before passed the Taft-Hartley Act and expressly refused to grant the president the power to seize a mine, shipyard, or other plant as a means of dealing with the many labor disputes then troubling the country and the economy.
Justice Hugo Black, writing for the Court, held that the president was not a king entitled to rule by fiat.
The president's duty was to see that the laws were faithfully executed. Those would be the laws passed by and enacted under (say by the executive administrative agencies which have rule-making power) the authority of Congress.
To rule by fiat means by the president's say-so (fiat = let it be, in Latin, as in "Fiat lux," "Let there be light." God said that. Genesis. Not the president, who isn't God, contrary to popular belief in some quarters).
When the president seeks to rule outside of the laws enacted by Congress, and outside of the limits imposed by the Constitution, even in times of felt emergency, he is legislating, which, as today's opinion makes clear once again, he may not do.
In a famous concurrence, Justice Robert Jackson clarified that the extent of the president's power may vary with circumstances. The most important of those circumstances is when his acts are fully in accord with acts of Congress regulating the subject matter in question. This is when the president's power is greatest.
Congress has not spoken on all possible subjects of presidential action, however, so there is room for presidential action apart from Congressional expression. The president is on thinner ice when acting without Congressional authorization.
But the president has fallen through the ice, as in today's case and in Youngstown, when he acts contrary to enactments of Congress, or the Constitution, where he has not been given the power he asserts, such as a huge warrant-less eavesdropping campaign.
See also Dombrowski v. Pfister (1965) in which a federal court enjoined state authorities from harassing and prosecuting a civil rights organization for exercising its First Amendment right to move for social change on racial issues.
Will Judge Taylor's decision be upheld on appeal? This is where law and politics mix. Judge Taylor, I just heard from TV commentator John Cafferty, is a 73-year-old, liberal, black jurist appointed to the bench by Pres. Jimmy Carter in 1979. The Supreme Court of the United States doesn't meet that description. The opinion fails to discuss possible justifications for upholding the program. See this article describing Judge Taylor, a graduate of Yale Law, the civil rights movement, and many other efforts.
The Dept. of Justice has appealed.
Could the Supreme Court decide differently? I suppose so. The case may be affected by other considerations.
Congress may pass legislation authorizing the warrant-less eavesdropping program. That legislation may itself be unconstitutional. The war may be history by the time that gets decided and we may not be as interested in this particular question, especially if the program ends, and is thus moot.
The Court could refrain from taking up the case while other similar cases are pending, and there are many, according to Attorney-General Alberto Gonzales. Those other cases have been consolidated into one big lawsuit, which will permit a decision that takes into account the different facts and other considerations that they represent as opposed to the Michigan litigation.
There are five conservative votes, including Justice Anthony Kennedy, referring to Chief Justice Roberts and Justices Alito, Thomas, and Scalia.
The eavesdropping program is not called by it's official or code name, only the letters TSP. My guess? Top Secret Program.
***
A dear friend with a lifetime in the business of intelligence writes:
Today’s communications are very sophisticated but so is the technology being applied against the “terrorist” targets.
I do not doubt the necessity or success of some of the collection techniques being employed.
Black projects have been a way of life for years and most have remained undercover, undisclosed and successful.
The undercover and undisclosed programs remained so because the operators and others cleared for them knew that they had been legitimatized because they went through a legal process.
The ones that have had leaks were not subject to the legal process and some insiders did not like seeing the abuse of the legal process and felt that they were being made accessories to a crime.
After doing what they could from the inside and getting no where they leaked the operation.
Some will call that treason.
Others will call it patriotic.
***
Now we're getting closer to what's important.
Yes, it's important that our government protect us against enemies, foreign, domestic, and terrorists wherever.
We made a choice some time ago, and have reiterated it repeatedly, that we will not be as bad as our enemies. We especially do not want our government to turn itself into the one we rebelled against, the British monarchy.
What was so bad about the British monarchy? For one thing it combined powers into its executive, the king. The Parliament was so corrupt, the colonists believed with good reason, that it served as George III's lapdog. It had been bought off. A principal reason for the revolution, in addition to the above, was that the colonists weren't asked when it came to the imposition of things that mattered to their daily life, such as who the next governor would be, or the new judge, or the new tax.
The shorthand for this deficiency came to be popularly known as "taxation without representation" is tyranny. The Boston Tea Party was a protest against it.
In writing on a new slate in Philadelphia, 1787, the framers of our Constitution, to which was added four years later the Bill of Rights, determined to rein in government the way a rider reins in a horse, by pulling on the reins.
Our government is a reined in horse. When it gets the bit in its teeth, as under Pres. Bush, and no doubt earlier presidents, this horse tends to run off in directions of its own without consulting the rider or the folks in the wagon it is pulling. That would be us.
We control our government, not the other way around.
Sometimes government forgets that.
Governments, especially ours, tend to think that they cannot trust the people governed.
The fact is that the people governed cannot trust government.
Our framers put up certain stop signs to prohibit government from trampling on the rights of the people. One of the biggest stop signs was the protection of our privacy against unlawful search and seizure. Our homes, persons, and papers, as well as communications in which we have a reasonable expectation of privacy, are protected by the Fourth Amendment.
Our thoughts, associations, expressions, inquiries, etc., are protected by the First Amendment. These are blended categories, not separate islands of protection.
They protect individuals like you, me, a journalist, a teacher, a lawyer, anyone. We can sue for violations, or threatened violations of our individual rights.
To further protect against government overreaching, we've cut up government, like all Gaul, into three parts. We don't want the George Bushes of the world claiming more power, like Caesar, than originally granted.
The traditional word to describe those opposed to excess executive power is "Whig." When Pres. Andrew Jackson appeared to critics in his own party to have grabbed too much power for comfort, they called him "King Andrew," and were in turn called Whigs, which became a political party for awhile. Abraham Lincoln was notable Whig until the party split over slavery and the northern wing joined the Northern Democrats opposed to slavery, becoming today's Republicans, the group that put Lincoln into the White House, thus precipitating the Civil War.
The reason the opponents of Jackson were called "whigs" is because that's the term that was used in England for the opponents of King Charles I, the great believer in the divine right of kings, especially him. He was brought down following a double-barreled shooting civil war and had his head chopped off by order of a kangaroo court called the Rump Parliament, which followed the Short and Long Parliaments, and the fighting. Supporters of the monarch were called Tories. Americans who sided with the monarch in our American Revolution were called Tories.
By likening Pres. Bush to a king, or a tyrant, as the federal judge has done, and pointing out how he has exercised greater power than given to the executive branch by the Constitution, and noting that the powers he has exercised belong to the legislative branch, Congress, the U.S. District Court (the lowest in the federal heap) has hollered "foul" in a fairly big way. Judge Taylor, umpiring at first base, has called Bush out. He ran outside the baselines and got tagged out at first base.
You see, in the American national sport, politics as governed by law, it is the fans, the citizens who have the final say over making the rules. Those rules consist of the Constitution adopted by the people originally, as amended by the people and interpreted by the Supreme Court, and the statutes enacted by Congress and not declared unconstitutional by the Court. Those are the rules of American baseball.
We call the division of powers into three parts, "Separation of Powers."
We call the final say of the people "Popular sovereignty."
The people have already spoken and said that they like their privacy. They said it by enacting various amendments protecting their right to be let alone. See the Olmstead and Griswold cases for the details and theory. You can search this site or go to Findlaw's free Supreme Court service and punch in the names to read the cases for yourself.
It is probably quite natural for a president to think he needs to step outside the Constitution to protect the American people. Lincoln did it during the Civil War. He suspended habeas corpus, meaning the right of an arrested person to complain to a court. Army generals acting under Lincoln's authority rounded up editors and politicians who spoke against the war.
Why must I shoot a soldier boy who deserted, Lincoln reasoned, and not be able to arrest the instigator who caused him to desert?
The problem with what Pres. Bush has done is that he did it in secret. Lincoln didn't. Lincoln issued a public proclamation authorizing his generals to act. When Congress convened, Lincoln told the members what he'd done (it was no secret) and asked for ratification, which Congress granted.
Pres. Bush hasn't done that, although he still may.
But in the meantime, Congress has legislated to protect "U.S. persons" from unwarranted government spying by establishing a strange kind of court called the Foreign Intelligence Surveillance Act (FISA) Court. If an intelligence agency wishes authorization to spy on a non-U.S. person without a warrant, it can do so. But if the agency wishes to spy on a U.S. person to see who we're talking to and about what, it must go to this court for permission. The government can even spy first and ask second, if circumstances require, so long as it reports back and obtains the authorization.
When the United States forgoes FISA court requirements and protections, it sets itself up over the Constitution, the Congress, and the people. This is what is so bad about what it has done, even if you think that had Pres. Bush requested, Congress and the American people might have granted him the authority. We still may before this issue is played out. There is nothing to prevent us from adopting an amendment to the Constitution or First and Fourth Amendments allowing secret massive spying to protect against terrorist activity in light of 9-11.
But as of now, the program seems illegal, and we do not condone our government acting illegally, for if we do, we abandon the rule of law and slide into a regime in which we place power, control, and oversight over our lives and liberty not in the hands of our representatives, but in one person, the president.
The whole point of the American Revolution was to get out from under one-man rule. We don't want to have removed this ultimate power from one George only to allow another to usurp it without a squawk. Today's lawsuit was that squawk.
It is not enough to say, as A-G Alberto Gonzales stated on television this evening, that the program has been productive, although I have trouble believing anything this administration says without seeing the proof, since the Iraq War. Of course illegal programs produce results. Hitler got rid of a lot of what were to him undesirable people. Mussolini made the trains run on time. Bush holds people in Guantanamo and authorized a loosening of prisoner protections that gave us Abu Ghraib.
The problem is far greater than Pres. Bush. He leads a government consisting of thousands of civilians and hundreds of thousands of troops. He sets the tone of lawfulness. If and when he winks at the law based on an excuse or pretext that necessity requires over the long haul, and he keeps secret the fact and his reasons, we have a right to be alarmed. He's gone outside the law, not just as to surveillance but as to other human rights.
Congress, unfortunately, has been cowed by events and politics into falling asleep at the switch, or turning a blind eye. So Bush and crew have been riding high. But the cat is now out of the bag. Congress is now aware. The people are paying more attention, I think.
So Bush may have to agree to fall in line. Either that or obtain a change in law to ratify his conduct. The American people, accustomed to a certain amount of comfort and security as opposed to the rest of the world, may be willing to give up liberty for security.
Benjamin Franklin said something to the effect that those who are willing to give up liberty to gain security, lose both and deserve neither.
I don't think we can let Bush get away with his power grabs even though other presidents may have done the same. It's not just Bush but the people around him who value power in their hands more than my liberty and yours.
So you and I have to make a choice whether to let this slide or take a stand either to rein in Bush or conform the laws to his conduct in order to re-establish the rule of law which seems to have become undone in the above-mentioned areas and one other, the president's practice of informally vetoing parts of legislation he doesn't like claiming them to be unconstitutional without vetoing the whole bill or testing them in court.
The fear is that we are seeing a pattern of extra-constitutional behavior amounting to unconstitutional behavior.
That's why the issue we're examining is bigger than whether you are being eavesdropped on. You may not care. You may feel you are doing nothing wrong. In that case, why not allow police unrestricted right to stop and interrogate anyone, including you, at checkpoints on the roads? Why not allow police unrestricted rights to enter your home and bedroom. You are a law abiding person, what do you have to fear?
Suddenly you get it. It's not about you. It's about us and how we choose to live in society. We do not give government unrestricted power to intrude on our privacy because government is not some abstract thing in Sacramento or Washington. Government is a cop knocking on your door wanting to come in and check you out by dumping the contents of your dresser on the bed and floor, then turning over the mattress and scanning your hard drive and collection of CDs.
It's not enough to say you've done nothing wrong. Of course you've done something wrong or that you would be embarrassed to have displayed to the neighbors or in the press or on TV. What are these? Sex toys in your night table? Who would have thought this of you? Oh, is this medical marijuana? Who do these books and magazines belong to? You? These old divorce or adoption papers...Yours? Do your kids know? They'll know now. And so forth.
Maintaining a government of laws requires thinking like this. Maybe you're used to it, maybe your not. Don't count on the president thinking like this when he wants to do something. Don't count on Congress to protect you, although you can speak up. Do count on a federal court somewhere giving considerable thought to such matters, because federal judges serve for life on good meaning non-criminal behavior and do not come up for re-election next term.
Someone needs to do the thinking on legal matters and this is why we study history and law. We've made these mistakes before and recall the adage that only a fool trips over the same stone twice.
So the question is not as much about eavesdropping as it is about whether our president is willing to obey the rule of law or abandon it, claiming expediency, and maybe votes, as there's always an election coming up for his party, isn't there.
When a president says, wrapping himself in the American flag, "I'm only doing this for your own good and protection," that's the time to be on your guard.
The polite term for government watching out for interests you should be watching out for yourself is "paternalism." This is where government keeps you in the dark and feeds you bullshit, like a mushroom.
I call it the Mushroom Theory of Government and think we ought to call him on it and get him back in line, don't you? Or move the line.
The problem I see with calling every important effort we make against "evil" as the president likes to say, a war, is that we have wars against everything: crime, poverty, drugs, terror, terrorists, terrorism, tobacco, obesity, etc.
War is either a shooting war, a Cold War, or a metaphor, but the power grab that results is real.
We tend to excuse more bad conduct in war than in peace.
The fact is that our invasions of Iraq and Afghanistan were real war.
The ongoing, continuing plots against American and Western interests by Al Qaeda are real, of course, as are the power grabs, but it may be a mistake to call the response, however dedicated and serious, war in the traditional sense. The recent terror plot to blow up airliners by mixing liquids aboard flight to form explosives certainly deserved to be detected, but it was done by investigative work, not military force. The conspirators arrested in Britain will, I presume, be tried as criminals, not held as prisoners of war for the duration.
Pres. Bush has declared himself a "war president," in a bit of rhetorical flag wrapping. Given Iraq and Afghanistan, there may be something to it, after all, he has committed troops and lost almost as many of them as we lost civilians in the Trade Center attack, close to three thousand.
It's the war on terror that has me scratching my head. Who, exactly, is terror? Osama Bin Laden? Al Qaeda? Thousands of people out of a billion who fear and loathe the West and are willing to attack us while sacrificing themselves?
Is this a new model war? Does this this require new responses, including a new legal under-structure? If so, can we discuss it? Can Congress take testimony and vote? Can we, the people, have our say?
Congress hasn't exactly been in the forefront of the effort to see that the country follows, or changes, the Constitution. It has appeared confused and emasculated. Leading Democrats like Sen. Joseph Lieberman parrot the Karl Rove, George Bush line. Lieberman was dumped by Democrats last week as their candidate for re-election. Candidate for vice-president in 2000, he now runs as an independent. How the mighty are fallen while George W continues to ride, not high, as his numbers are down, but riding still, for another two years or so.
At the level of constitutional power, law and politics intertwine and it becomes a challenge to describe where one leaves off and the other begins. What determines the outcome of constitutional questions, law or politics? The answer is "both."
***
Today, Pres. Bush took exception to Judge Taylor's ruling:
Bush Defends Surveillance Program
CAMP DAVID, Md. (AP) -- President Bush on Friday criticized a federal court ruling that said his warrantless wiretapping program is unconstitutional, declaring that opponents "do not understand the nature of the world in which we live."
"I strongly disagree with that decision, strongly disagree," Bush said, striking his finger on a podium to underscore his point. "That's why I instructed the Justice Department to appeal immediately, and I believe our appeals will be upheld."
U.S. District Judge Anna Diggs Taylor in Detroit on Thursday was the first to find the National Security Agency surveillance program unconstitutional. The program involves monitoring international phone calls and e-mails to and from the United States involving people with suspected ties to terrorists.
"If al-Qaida is calling in to the United States, we want to know why they're calling," Bush said.
Critics say the surveillance program skirts the 1978 Foreign Intelligence Surveillance Act, which requires court warrants for domestic eavesdropping. The administration has argued that obtaining warrants from a secret court set up under FISA is a time-consuming process unsuited for the government's fast-moving war on terror.
The judge said the government, in defending the program, appeared to be saying the president had the "inherent power" to violate laws of Congress.
"It was never the intent of the framers to give the president such unfettered control," Taylor wrote in a 43-page opinion. "... There are no hereditary Kings in America and no powers not created by the Constitution. So all 'inherent powers' must derive from that Constitution."
***
This is the defense that Pres. Bush has to make in order to retain the power to spy on Americans and keep the extraordinary power apparently used by previous presidents.
So far it does not appear that any administration has fully revealed to Congress or any court the magnitude of the threat and the extent of U.S. countermeasures, constitutional or otherwise.
This is the case that he has to make to the American people.
Plotters must already assume that they must keep their terrorist plans a secret. How we go about detecting those plans is our secret.
It should be no secret that we will use whatever measures available to us, including kidnap and torture. That's been front page news for years. It is well known that we vacuum clean the skies for electronic data to evaluate.
It may be that we distinguish between opening a letter and reading the contents and inspecting the addresses on the cover.
It may be that we'll have to distinguish between reading electronic addresses and the content of messages.
As I understand it, electronic communications is based on a packet system in which your message is broken into bits containing address code and a few words. These go all over the world via the internet, phone cables, and the airwaves in a huge scramble of pieces. It takes a demodulator to unscramble the pieces and put them back into message form in the correct order. The message then must be run through a computer using an algorithm that picks out key words. Use enough key words and you are a candidate for further inspection.
Let's assume this is more or less correct, unless and until corrected. What do we do with this, constitutionally speaking?
Is this analagous to the postmaster reading your mail? Or is it analagous to the postmaster reading just the envelope to see who is writing to whom? Or a bit of both?
The Taylor opinion doesn't address such questions, and perhaps it should have, otherwise Pres. Bush is free to object that Judge Taylor doesn't appreciate the world he's operating in, which is different from Detroit, where she sits.
This case, and those like it, need greater development before we can decide the serious questions involved on a realistic basis.
In other words, Pres. Bush may be correct that the Taylor opinion needs to be reversed. And I'll bet he knows just where to go to get it done, and I don't mean the Sixth Circuit where she sits.
***
The best comment so far is in today's (8/19/06) Letters section of the New York Times where someone write:
Thank goodness for an activist judge to rein in an activist president.
***
8/20/06
Some of the Conlawprofs have been taking potshots at Judge Taylor's write-up of why Pres. Bush's massive NSA vacuum cleaning of the sky and wires was unconstitutional. I kind of liked it for the reasons the others don't. I thought she called a spade a spade and left the nuanced approach to the appellate courts that will have to grade her paper.
In a blog post, Prof. Laurence Tribe also takes the contrarian approach, in response to an article by Adam Liptak on the front page of yesterday's Times. Among his points is that it's easy for a Conlawprof to criticize an opinion s/he hasn't had the job of writing, claiming it could have been better written by a Conlawprof, and then not offering up his or her own effort for the sake of comparison, as in cheap shot.
Tribe also points out that Judge Taylor's effort reflects standard doctrine used by the civil rights movement before the Rehnquist Court got around to reining in the notion of chilling effect. Judge Taylor is a product of the civil rights movement and it seems likely that the bedrock principles of her youth, learned in that struggle, would serve her well in blowing the whistle on what seemed to her and a great deal of the rest of the country as blatantly unconstitutional as the Constitution is understood at present to students of the body of law who aren't invested in the support of the administration.
Prof. Tribe, of Harvard Law, represented Al Gore before the Florida Supreme Court in Bush v. Gore (2000). He's also written one of the leading treatises on U.S. Constitutional Law, called American Constitutional Law. He's declined to write a 4th edition because today's Constitutional law seems too unsettled to do it justice in a definitive work, which some other leading professors found significant in itself. It must seem like organizing Humpty-Dumpty after the fall.
Conlawprof Erwin Chemerinsky, a former student of Tribe and author of a useful text on the Constitution, more or less agrees with Tribe in a Slate comment, here.
Jonathan Turley notes here that the price of illegal eavesdropping is felony indictment, which may be another reason the president is so forceful in his advocacy of the illegality of the massive data-mining program, allegedly.
8/23/06
Ann Althouse has this NYT Op-Ed.