Federal court strikes down NSA domestic surveillance program

JB

Nevertheless, the court upheld the state secrets privilege with respect to the plaintiffs' claim that the government was illegally using data mining techniques. The court held that this claim required access to sensitive information that could not be disclosed without a reasonable risk of harm to the interests of the United States. Therefore it dismissed the data-mining claim.

Next the court held that the plaintiffs had standing to challenge the NSA program. In fact, most of the opinion dealt with the state secrets and standing issues, leaving the discussion of the merits very sketchy indeed. And that is the major problem with the opinion.

Turning to the merits, the court held the NSA domestic surveillance program unconstitutional under the Fourth Amendment, the First Amendment right of association, and the general requirements of separation of powers under the doctrine of Youngstown. The court rejected inherent authority in the President to conduct the program and it rejected the claim of statutory authority under the September 18th, 2001 Authorization for the Use of Military Force (AUMF). It held that the government's suggestion that FISA itself was unconstitutional was "irrelevant" because the President had already violated the First and Fourth Amendments.

Although the court reaches the right result-- that the program is illegal, much of the opinion is disappointing, and I would even suggest, a bit confused. The first amendment holding is novel although plausible, but it is not supported by very good arguments. The basic idea is that when the government spys on its citizens, they are likely to avoid making controversial statements or join controversial organizations. Fair enough. But the problem is that the program was secret. It was the disclosure of the program that created the chilling effect. And even if we put that problem to one side, it is not clear whether a program that is otherwise legal under the Fourth Amendment and federal law ipso facto violates the First Amendment simply because people are chilled by its existence.

Second, the court does not really deal with a number of very good arguments for why the NSA program might be within the Fourth Amendment. The best argument for the court's position is that if the program reaches United States persons who are not agents of a foreign power, like the plaintiffs, it may be unconstitutional. But the court does not make that distinction.

Finally, the court seems to be very weak in its reasoning about the separation of powers. It does not even cite the recent Hamdan decision, which is probably the most relevant decision, resting its arguments primarily on the 2004 Hamdi decision. It also seems confused about what constitutes a violation of separation of powers. If the AUMF did in fact amend FISA, the government has a very strong argument that it falls into category one-- maximum executive power-- and not category three-- minimum executive power-- under the Youngstown analysis. The court does not seem to deal with the best version of the government's arguments. I think those arguments fail, for reasons that Marty and I, among others, have elaborated. But I must say that the court's analysis is not very strong. It depends heavily on the fact that the President has violated the First and Fourth Amendments, which, I think, are the weakest arguments against the program. If those arguments go away, the separation of powers argument it offers is not very good, although in fact there are very good arguments for why the program does in fact violate the separation of powers, as well as FISA itself. The fact that the court does not bother to meet the government's suggestion that FISA is unconstitutional (to the extent that it limits executive power) is also quite unwise, in my view. Indeed, I'm mystified by the court's refusal to draw on well publicized debates over the legality of the program between Justice Department officials and legal academics and commentators that rehearses the best arguments pro and con, or, for that matter, the reasoning of the Supreme Court's Hamdan decision, handed down this June, which is, in my estimation, precisely on point.

It is quite clear that the government will appeal this opinion, and because the court's opinion, quite frankly, has so many holes in it, it is also clear to me that the plaintiffs will have to relitigate the entire matter before the circuit court, and possibly the Supreme Court. The reasons that the court below has given are just not good enough. This is just the opening shot in what promises to be a long battle.