In a strongly-worded and broadly-based rebuke of a cornerstone of the Administration's war on terror, U.S. District Judge Anna Diggs Taylor today issued an opinion declaring the Terrorist Surveillance Program (TSP) implemented by the National Security Agency (NSA) to be unconstitutional and in violation of federal law. Her permanent injunction orders the NSA to cease operating the TSP in any way, including warrantless wiretaps of telephone and internet communications, that contravenes the requirements and safeguards for electronic surveillance imposed by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510 et seq., and the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1801 et seq. (FISA).
The action was filed in the Eastern District of Michigan by the ACLU and a group of organizations and individuals who contend that they regularly communicate by telephone and e-mail with persons abroad, including in the Middle East, for entirely legitimate reasons relating to their practice of law, journalism and scholarship. The plaintiffs allege they have been subjected to the covert, warrantless interception or monitoring of such international communications, violating their rights and chilling their constitutionally protected communications. Since persons abroad who formerly spoke with them will no longer do so, the plaintiffs argue they have been stifled in their ability to conduct research and scholarship, talk with sources, interact with clients and, in the case of those plaintiffs who are attorneys, locate witnesses and provide effective and ethical reperesentation to their clients.
The Government argued that dismissal was required by the so-called "state secrets" privilege because the plaintiffs could establish neither their own standing to sue (i.e., whether they had actually been the targets of the covert wiretapping and monitoring they suspect) nor the elements of their claims without the use of confidential information in the hands of the Government that constitute state secrets. Moreover, the Government argued that it could not defend its programs as being both necessary to the national defense and in compliance with constitutional and statutory standards without revealing state secrets.
In Tenenbaum v. Simonini, 372 F.3d 776, 777 (6th Cir. 2004), the Sixth Circuit affirmed the dismissal of discrimination claims against federal agencies because they could not defend themselves "without disclosing information protected by the state secrets doctrine." Other district courts have invoked the doctrine to dismiss challenges to various aspects of the war on terror. In one such recent case, Terkel v. AT&T Corp., 2006 WL 2088202 (N.D. Ill. 07-25-06), Studs Terkel and the other plaintiffs alleged that their wireless service provider, AT&T, turned over to the NSA confidential information regarding their telephone calls and internet communications. District Judge Matthew Kennely dismissed the case on the ground that the state secrets privilege made it impossible for the plaintiffs to establish standing.
However, like District Judge Vaughn Walker in Hepting v. AT&T Corp., 2006 WL 2038464 (N.D. Cal. 6-20-06), Judge Taylor rejected the state secrets argument. She found that the Government has on many occasions admitted and confirmed that:
1. the TSP exists and has existed since 2002;
2. it operates without warrants; and
3. it targets communications where one party is outside the United States, and the government has a reasonable basis to conclude that one party is a member of al-Qaeda, affiliated with al-Qaeda, a member of an organization affiliated with al-Qaeda, or working in support of al-Qaeda.
Indeed, in his December 17, 2005 radio address, President Bush disclosed:
In the weeks following the terrorist attacks on our nation, 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.
The court ruled that the NSA's warrantless wiretaps violated the plaintiffs' free speech and privacy rights embodied in the First and Fourth Amendments to the Constitution. The decision also concluded that the TSP program violated the constitutional separation of powers doctrine and FISA, noting that FISA (like Title III) permits delayed applications for warrants after surveillance has already begun.
Judge Taylor rejected the Government's arguments that (i) Congress' Authorization for Use of Military Force on September 18, 2001, Pub. L. 107-40, 115 Stat. 224, 50 U.S.C. 1541, granted the President the power to conduct the TSP in violation of FISA and the Constitution, and (ii) the designation of the President as Commander in Chief of the Army and Navy grants him the inherent power to violate laws enacted by Congress and the Constitution whenever he deems it necessary to the national defense. The court noted that the same "inherent powers" argument had been unsuccessfully raised before in the Steel Seizure Case, Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), and that "since Ex parte Milligan [71 U.S. (4 Wall.) 2, 120 (1866)], we have been taught that the 'Constitution of the United States is a law for rulers and people, equally in war and in peace . . .' "
Judge Taylor's opinion concludes with a message and a challenge: "Plaintiffs have prevailed, and the public interest is clear . . . It is the upholding of our Constitution. As Justice Warren wrote in U.S. v. Robel, 389 U.S. 258,  (1967):
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 a subversion of . . . those liberties . . . which makes the defense of the Nation worthwhile."
The NSA's public information statement on the TSP sets forth several justifications for the program.
The Justice Department will apparently ask Judge Taylor for a stay of her injunction order pending its appeal to the Sixth Circuit.