NSA eavesdropping Finding

I haven't found much decent commentary on the NSA Wiretapping decision by Judge Anna Diggs Taylor that isn't negative. Well, other than the ACLU and their ilk. Let's just start with a quote from the MSM.

Anthony Romero, executive director of the American Civil Liberties Union, a lead plaintiff in the case, called the ruling "another nail in the coffin" of the administration's use of executive power to conduct controversial programs in the name of the war on terrorism. "This is a reaffirmation of the system of checks and balances," he said.

The administration, however, was quick to respond, calling the surveillance program a "critical tool that ensures we have in place an early warning system to detect and prevent a terrorist attack." In a hastily called afternoon press conference, Attorney General Alberto Gonzales said that "we continue to believe that the program is lawful." In a statement, Senate Majority Leader Bill Frist called for a "quick reversal of this unfortunate decision."

And career national security lawyer Bryan Cunningham, who filed an amicus brief for the Washington Legal Foundation supporting the administration's position, said the judge's order would shut down a government intelligence program without full examination of the evidence.

"This judge is obviously very upset about the program. She clearly wanted to shut it down," said Cunningham, who testified on the surveillance program before the Senate Judiciary Committee 2 ¹/₂weeks ago. "This legal work is so sloppy I wouldn't accept it from a first-year law student."

I also found it odd that I can't find a report that states that the Administration has already received a stay from her judgment. WaPo almost gets there with reporting the appeal.

The administration said it would appeal to the 6th U.S. Circuit Court of Appeals in Cincinnati.

"We're going to do everything we can do in the courts to allow this program to continue," Attorney General Alberto Gonzales said at a news conference in Washington.

and

Taylor ordered an immediate halt to the program, but the government said it would ask for a stay of that order pending appeal. The American Civil Liberties Union, which brought the suit, said it would oppose a stay but agreed to delay enforcement of the injunction until Taylor hears arguments Sept. 7.

I've heard several statements that a stay is in place from the 6th Circuit Court, but I don't know how accurate that report is either.

I don't think the BushDementia crowd should be too excited about this, though the press is playing it like a drum. No doubt that the MSM is being even handed on the reporting, since they all seem to think this is a huge rebuke, and then they fail to state that this is just the beginning of the legal process.

The commenters at the Volokh Conspiracy are definitely frowning on the judgment.
Orin Kerr looks at the 4th amendment finding:

The Fourth Amendment and the NSA Domestic Surveillance Opinion: I've just read through the Fourth Amendment part of Judge Taylor's opinion on the NSA domestic wiretapping opinion, and, well, um, it's kind of hard to know what to make of it. There really isn't any analysis; rather, it's just a few pages of general ruminations about the Fourth Amendment (much of it incomplete and some of it simply incorrect) followed by the statement in passing that the program is "obviously" in violation of the Fourth Amendment.

Here's the part that comes closest to being an analysis section:

[The Fourth Amendment requires] reasonableness in all searches. It also requires prior warrants for any reasonable search, based upon prior-existing probable cause, as well as particularity as to persons, places, and things, and the interposition of a neutral magistrate between Executive branch enforcement officers and citizens.
In enacting FISA, Congress made numerous concessions to stated executive needs. They include delaying the applications for warrants until after surveillance has begun for several types of exigencies, reducing the probable cause requirement to a less stringent standard, provision of a single court of judicial experts, and extension of the duration of approved wiretaps from thirty days (under Title III) to a ninety day term.
All of the above Congressional concessions to Executive need and to the exigencies of our present situation as a people, however, have been futile. The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in violation of the Fourth Amendment.
The President of the United States is himself created by that same Constitution.

I confess that this has me scratching my head.

He does a break down of the statement later in the post that is worth reading.

Then there is Dale Carpenter on "standing."

The NSA Eavesdropping Opinion and Standing:

The district court held that the plaintiffs had standing to challenge the warrantless NSA surveillance program. The plaintiffs are individuals and associations whose members "conducted regular international and telephone and internet communications for various uncontestedly legitimate reasons including journalism, the practice of law, and scholarship." They asserted a "well founded belief" that they had been subjected to warrantless surveillance and that the existence of the program had actually "chilled" their communications with persons overseas. None of the plaintiffs alleged, however, that they had actually been surveilled under the NSA program.

The Supreme Court has held that, to establish standing, the plaintiffs must allege an injury that is concrete and particularized, not hypothetical and conjectural. Cases in the past decade or so have shown that this doctrine is quite flexible, allowing the Court to sidestep difficult or particularly sensitive constitutional questions where there's even a doubt about whether the standing threshold has been met. An example of this technical maneuver to avoid consideration of a thorny constitutional issue is the Supreme Court's recent decision to reject a non-custodial atheist father's claim that it is unconstitutional for public schools to lead children in reciting the phrase "under God" in the Pledge of Allegiance. Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1 (2004) (dismissing claim on the ground that the father lacked standing). Justice Stevens's majority opinion declared: "The command to guard zealously and exercise rarely our power to make constitutional pro-nouncements requires strictest adherence when matters of great national significance are at stake." Id. at 11 (emphasis added).

I've heard discussions on this stating variousl that Taylor's finding on standing was questionable to it was totally out to lunch. It still comes down to her having made a decision without any evidence. Oh, note also that Carpenter isn't a supporter of the NSA wiretapping program.

Then Eugene Volokh quotes Jack Balkin on the case.

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 even supporters of the findings are troubled by the methods, I'm quite certain that the appeal will be very combatative.

And Eugene Volokh on the First amendment finding:

The NSA Eavesdropping Opinion and the First Amendment:

The court also holds that the program violates the First Amendment, because it deters some people from communicating with the plaintiffs, given the risk that the communications will be overheard. Note, though, that this judgment rests entirely on the court's earlier conclusion (which is in my view not fully defended) that the eavesdropping violates the Fourth Amendment.

All publicly known eavesdropping -- or for that matter the prospect of possible searches of tangible papers -- poses the risk that some communications will be deterred. Eavesdropping conducted pursuant to properly issued warrants (ones that can be based on mere probable cause, rather than any solid proof that the eavesdropping will yield incriminating evidence) poses that risk. Eavesdropping conducted pursuant to properly issued FISA orders, which don't even require probable cause that the speech collected will be incriminating (only probable cause that the targeted person is an agent of a foreign power), poses that risk. Constitutionally permissible border searches of papers pose that risk.

But there's no need to show in any of these cases (as the court in this case suggested) that the search is based on "a compelling governmental interest; and that the means chosen to further that interest are the least restrictive of freedom of belief and association that could be chosen." At most, the Fourth Amendment rules (which generally require only a warrant and probable cause and not a compelling interest and narrow tailoring, sometimes don't even require a warrant, and sometimes don't even require either a warrant or probable cause) are made somewhat more demanding by the First Amendment (see, e.g., Lo-Ji Sales, Inc. v. New York), though even that doctrine is quite limited. And in a case like this one, I know of no Supreme Court cases suggesting that a search that's valid under the standard Fourth Amendment rules would violate the First Amendment.

So the court's First Amendment conclusion, if it's correct, would be correct only if the court is right to say that the program violates the Fourth Amendment, and that a violation of the Fourth Amendment in such a situation yields a violation of the First Amendment. Perhaps the court is correct here, but it's important to recognize that the First Amendment holding is derivative of the Fourth Amendment holding, rather than being a fully independent basis for the decision.

Funny, I don't think if I were the ACLU that I'd be that proud of this finding. I have a suspicion that their Judge shopping will have resulted in allowing the Administration to Judge shop at the 6th Circuit ending with their desired result being overturned.