Judge to NSA: Cut It Out

Jacob Sullum | August 17, 2006

Responding to an ACLU lawsuit, a federal judge in Detroit has concluded that the NSA's warrantless surveillance of international e-mail and telephone calls involving people in the U.S. is illegal and unconstitutional. U.S. District Judge Anna Diggs Taylor ordered an immediate stop to the program, which she said violates the Foreign Intelligence Surveillance Act, the Fourth Amendment, and (because of its chilling effect on the speech of people worried about the surveillance) the First Amendment. Her opinion is here.

Comments

|8.17.06 @ 4:12PM|#

Yes!!

|8.17.06 @ 4:19PM|#

Why does Judge Taylor hate America?

|8.17.06 @ 4:29PM|#

Hurray!

|8.17.06 @ 5:01PM|#

Dont uncork the champagne just yet...

I give this a couple of weeks before some higher court clamps down in full and reverses under dubious claims re: national security.

Not sure what the next higher court is tho... SCOTUS? someone clarify if poss.

JG

|8.17.06 @ 5:01PM|#

This is great news, but only a (crucial) first step. Now we need to win in the Appeals and Supreme Court.

|8.17.06 @ 5:08PM|#

Good analysis here at Volokh

http://volokh.com/posts/chain_1155842434.shtml

|8.17.06 @ 5:11PM|#

Let's hope it sticks.

Thomas Paine's Goiter|8.17.06 @ 5:29PM|#

My guess is the program does't stop. It will be renamed and reconstituted.

|8.17.06 @ 5:39PM|#

GILMORE,

It will go to the Federal Circuit Court (this assumes that the government appeals the decision) and then to the SCOTUS (if the latter grants cert). In this case it would go to the 6th Circuit (which takes up Michigan, Ohio, Tennessee and Kentucky).

The Wine Commonsewer|8.17.06 @ 5:47PM|#

BFD, call me when the ACLU gets done with IRS violations of due process. By then phones will be obsolete and we'll all be using telepathy.

Don't get me wrong, I'm pleased with the outcome, but this is one tiny little drop in a very big fargin' bucket.

|8.17.06 @ 6:08PM|#

Don't get me wrong, I'm pleased with the outcome, but this is one tiny little drop in a very big fargin' bucket.

A journey of a very big fargin' bucket begins with a tiny little drop.

Bretigne|8.17.06 @ 6:13PM|#

So if it does stick, this means someone(s) will be going to jail, right?

|8.17.06 @ 6:37PM|#

(Here's hoping that the server squirrels let this through. 4 8 15 16 23 42)

I nominate Anna Diggs Taylor for the next Supreme Court vacancy.

Seriously.

Bretigne|8.17.06 @ 6:48PM|#

So if it does stick, this means someone(s) will be going to jail, right?

Bretigne|8.17.06 @ 7:25PM|#

So if it does stick, this means someone(s) will be going to jail, right?

Dennis|8.17.06 @ 7:25PM|#

Just to clarify Phil-Lip's comment above, it will go to the Sixth Circuit Court of Appeals, which is one of the federal (lowercase f) Circuit Courts of Appeals. "The Federal Circuit Court" refers to a specific court that has nothing to do with this case (it largely handles trademark and patent disputes, along with some international trade stuff. Mostly.)

Warren|8.17.06 @ 7:31PM|#

hooray

In two weeks they'll be back at it, only this time they won't tell anyone.

I won't be happy till everyone from Keith B. Alexander to George W Bush is in a federal pound-em-in-the-ass prison.

|8.17.06 @ 7:32PM|#

According to her opinion, the office of the President was created by the Constitution and cannot have any powers not enumerated by said document.

How the Hell did she ever get on a Federal bench?

|8.17.06 @ 7:43PM|#

I think that if the federal Circuit Courts of Appeals upholds the ruling the administration will try for yet another stay while waiting to see if the Supreme Court will take up the matter.

If the SC chooses to do so they'll likely let that process run until a few days before a verdict seems imminent and then drop the whole thing ala Padilla.

|8.17.06 @ 7:55PM|#

Pretty sure the Appeals court won't uphold this ruling. The content of the decision is pretty laughable. It's a few choice quotes strung together without much coherent analysis.

Right outcome, wrong reasons.

|8.17.06 @ 8:25PM|#

I gotta agree with Bret. It doesn't really read like the (admittedly few) court decisions I've seen.

"Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution."

It almost reads like she's consciously inserting sound-bites. "Ooh! This is the defining case of my career. Better make sure to have some choice quotes for my biographers and the inevitable made-for-TV movie."

|8.17.06 @ 8:33PM|#

What Gilmore said.

6th District ct. will overturn it . .

|8.17.06 @ 8:33PM|#

I, too, agree that this decision will not stand on appeal. I don't see how intercepting international calls is significantly different from reading international mail without a warrent (which is allowed).

|8.17.06 @ 8:35PM|#

Warren,

Calm down. When Russ Feingold tried to merely censure the administration for the warrantless wiretaps, most Democrats when into panic mode. Given that EVERY administration is guilty of major violations of constitutional rights, I don't see this becoming a criminal investigation.

Regardless, if I had to start a criminal investigation of current administration, it would be for apparent violations of 18 U.S.C. 2340.

|8.17.06 @ 8:43PM|#

"So if it does stick, this means someone(s) will be going to jail, right?"

Probably not. See, you can only do that sort of thing when there are important things like blowjobs involved.

|8.17.06 @ 9:27PM|#

Great news but I don't think they will stop.

|8.17.06 @ 9:30PM|#

What Bret said.

This opinion just doesn't hold up. In particular, the phrase "this administration in its war on terror . . ." (emphasis added) strikes me as a little too close to political rhetoric and not close enough to thorough legal analysis.

Mike Laursen|8.17.06 @ 10:13PM|#

Don't know if her ruling will stand, but it does put the Bush Administration in an awkward position. Every legal argument they make now has to refer back to this case where their actions were declared unconstitutional. Tons of TV reports on the case and related future cases will contain sound bites about their actions being declared unconstitutional.

Reading between the lines of her ruling, it seems that the ruling was so straightforward because the Administration didn't present a good defense. Sounds like they came before her simply arguing that they couldn't defend themselves without revealing national security secrets.

|8.17.06 @ 10:18PM|#

The excerpts I've read from the ruling don't necessarily sound like the most dispassionate legal reasoning ever put forth. Then again, how else is a judge supposed to respond when the executive branch gives the "Because we fucking said so!" argument?

|8.17.06 @ 10:38PM|#

Mike's on to something. The meme of unconstitutionality has been released into the discourse now.

The possibility that Bush can be declared to be in direct violation of criminal statute has been instantianted, and this at least serves to balance out some of the autofellatio from Gonzales, Yoo &c.

Toto is tugging at the curtain...

|8.17.06 @ 11:40PM|#

Yeah this is a wonderful development, because so many innocent Americans were being put in jail (and probably executed without our knowledge). Can't have the gov't protecting its citizens from foreign invaders if it means there's a chance they might accidently hear me talking about smoking pot or something. Islamic Terrorism is just something that Bush/Cheney made up to scare everyone. Jihadists are actually reknowned civil libertarians who only hate America because Bush invaded Iraq.

|8.17.06 @ 11:59PM|#

i'd like to see Thumbscrews Gonzales spend some well earned time in a "federal pound-em-in-the-ass prison."

maybe that's just me.

|8.18.06 @ 12:07AM|#

Quit throwing that huge strawman around, NAL. You're making my hay fever act up.

Warren|8.18.06 @ 12:10AM|#

Hmmm,
If you're talking priorities, I agree torture is far more egregious than warrantless spying. But I don't buy the "every administration does it" line. That might hold up one trespass at a time, but when you add em all up, this team isn't even a within a day's ride of the reservation.

|8.18.06 @ 2:14AM|#

Jon H, don't even go down the "blow job" road. The conversation will divert faster than a



So others are not inconvenienced into doing their own research:

"18 U.S.C. 2340" is

(1) ''torture'' means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) ''severe mental pain or suffering'' means the prolonged mental harm caused by or resulting from -

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and

(3) ''United States'' includes all areas under the jurisdiction of the United States including any of the places described in sections 5 and 7 of this title and section 46501(2) of title 49.

|8.18.06 @ 4:24AM|#

Dennis,

Yeah, I realized my error as soon as I posted that. I was hoping no one would notice. :)

|8.18.06 @ 4:27AM|#

Dennis,

Then there is the whole issue of having to wait an hour before you can get a post to go through. :)

|8.18.06 @ 6:37AM|#

What "chilling effect" are we talking about? If that I call a number associated with a terrorist in Pakistan and start chatting about nuclear weapons in Farsi, some NSA super-computer might flag the conversation for review by a human being?

"Chilling" my ass. Let's cut out the hyperbole. On a scale of trading freedom for safety, this is a far better bargain than most.

mcdizzle|8.18.06 @ 8:02AM|#

"Let's cut out the hyperbole. On a scale of trading freedom for safety, this is a far better bargain than most."

I think Chad brings up a point that many of us are reticent to confront; what is the appropriate reaction to policing against these types of "crimes"? How should the technological abilities of our law enforcement agencies be checked, since they have the potential to be (or even the demonstrable history of being) absued? There is the FICA court, but what are the arguments/merits of that?

I'm certain I've left out some important aspects of this debate. Educate me, oh wise web community! ...and that's honest, not sarcastic.

|8.18.06 @ 8:17AM|#

Everytime someone says something like, "If you aren't doing anything wrong then you've got nothing to worry about" just makes all the more clear how little they understand about what the Fourth Amendment says and why the Founding Fathers were motivated to include it.

The point of the 4th is that if you're not doing anything wrong then you shouldn't even be under suspicion. If you're not under suspicion then you shouldn't be investigated. And assuming that every Muslim, resident of Iran or Afganistan, or person who doesn't like Cowboy Diplomacy is behaving suspiciously doesn't come any closer to constituting probable cause than Salem Witch witnesses saying "I dreamed that she was flying on a broom."

It's baseless under the Fourth, therefore it's unconstitutional. The logical conclusion: It's illegal.

|8.18.06 @ 9:04AM|#

Live free or die!!

Or as Chad would like it: Live free or perform a mathmatical function that compares the freedoms we cherish as Americans and the safety that the White House uses to simultaneously scare us and reassure us.

Seriously, Chad, the issue isn't whether people calling terrorists in Pakistan should be ignored. That's just silly. The issue is that we have no way of knowing who are the targets of these wiretaps. Besides, the law already provides for doing wiretaps legally. The legal process (which can be a post hoc justification) is there to make sure that only terrorists in Pakistan are monitored, and not, i.e., news organizations, political and diplomatic initiatives and political enemies in foreign lands.

|8.18.06 @ 9:28AM|#

The First Amendment rationale is pretty lame. When a district court judge makes a sweeping ruling such as this, especially when the program can be overturned on more narrow grounds (either Constitutional or statutory), she's just begging to have the decision reversed on appeal.

|8.18.06 @ 9:50AM|#

Daniel,

Not necessarily. The shotgun approach can give a superior appellate court a cafeteria-style approach for its ruling. Don't want to disturb Fourth Amendment precedent but don't like to let the Administration run amok? Make it a speech case. Or something else. Of course, the default with the SCOTUS is to deal with such cases strictly on procedural grounds. Thus giving deference to a branch of government it's supposed to be chastising for extra-constitutional actions. The failure of the SCOTUS to deal with this sort of thing is one reason that the idea of constitutional limits is increasingly becoming a quaint memory.

|8.18.06 @ 1:21PM|#

I'm afraid you guys are all forgetting to ask the the most pertinent question here: Is Anna Diggs Taylor hot?

James Anderson Merritt|8.18.06 @ 5:19PM|#

"I'm afraid you guys are all forgetting to ask the the most pertinent question here: Is Anna Diggs Taylor hot?"

If you like septuagenarians (and who doesn't??), I would think so. I know Denny Crane would make a play for her.