T Nation

Warantless Wiretaps Unconstitutional


#1

Duh.
http://www.cnn.com/2006/POLITICS/08/17/domesticspying.lawsuit/index.html


#2

I can see this as becoming a fundamental question of whether the Patriot Act can override the constitution.

The US constitution is, in my opinion, the most important document of modern times. I hate to see it trashed.


#3

Thus saith one district-level federal judge in Detroit... in a relatively unimpressive opinion, from what I've seen:

Jack Balkin thinks it was the right result, but a confused opinion - and thinks because of the opinion's many holes the entire case will essentially need to be relitigated on appeal:

http://balkin.blogspot.com/2006/08/federal-court-strikes-down-nsa.html

Eugene Volokh also describes some of the problems:

http://volokh.com/archives/archive_2006_08_13-2006_08_19.shtml#1155840582

http://volokh.com/archives/archive_2006_08_13-2006_08_19.shtml#1155837741

http://volokh.com/archives/archive_2006_08_13-2006_08_19.shtml#1155836899

Of course, perhaps the judge was reaching on the Constitutional matter because the stronger claim that it violated FISA would 1) involve a separation of powers issue that the appellate courts (particularly the USSC) are loathe to address and 2) may soon be moot due to Specter's proposed changes to the FISA language:
http://www.orinkerr.com/2006/08/04/the-specter-bills-changes-to-the-basic-definitions-of-fisa/


#4

Also note that even this judge managed to dismiss the complaint related to data mining...


#5

Love the tone of this:
"even this judge managed to dismiss the complaint related to data mining..."

uh yeah on the grounds of it hasn't been confirmed (secret).


#6

err... if it is concluded that congress can't authorize an unconstitutional act (AUMF couldn't do it even if it did), then Specter's bill couldn't either.


#7

Yeah, except the 4th and 1st Amendment violations are the weakest parts of the opinion, and the most likely to be overturned on appeal. See my links above.

ADDENDUM: To more fully explain, Specter would not be authorizing an unconstitutional activity -- the 4th Amendment and 1st Amendment opinions are likely wrong, which leaves a statutory violation as the only basis for "illegality" -- but change the definitions of the statute, and you no longer have a violation...


#8

Yeah, those pesky state secrets...

However, if she had reviewed it, she would somehow have needed to find a rational expectation of privacy on data either released to private companies or put into the public arena -- a rather tall order...


#9

I just thought "even this judge" was kind of weird. Plus it implied (to me) dismissed on merits, it wasn't.

Bad arguments, good outcome---take it to the SCOTUS... 5-4 FTW!


#10

Oh, lumpy. You'll lose this one too!!!

JeffR


#11

Thank God


#12

It seems to me that the decision was made, not out of knkowledge of the constitution, but as way to get it out of her court and moved up the chain.

Isn't it a fairly standard MO for low level judges to clear a hot potato issue off their docket, knowing that it will be appealed up the chain, regardless of the verdict rendered?

Is this one decision even worth wadded panties? Surely the argument will be kept alive via appeal for quite some time.


#13

They sometimes think they'll be overruled, but if they do they usually try to put forth their best arguments -- this opinion just ignored the strongest Constitutional arguments altogether.

Thus my "even this judge" reference.

See this post:

http://volokh.com/archives/archive_2006_08_13-2006_08_19.shtml#1155856506

And no, I wouldn't put much time into worrying about this decision standing...


#14

Here's an argument that the judge was wrong to even grant standing to these plaintiffs, because the plaintiffs lacked a concrete and particularized injury:

http://volokh.com/archives/archive_2006_08_13-2006_08_19.shtml#1155856278

ADDENDUM:

And here's the most damning critique of the 4th Amendment part of the opinion: There's really nothing to critique, because there's no reasoning:

http://volokh.com/archives/archive_2006_08_13-2006_08_19.shtml#1155854205


#15

Boston,

One of the comments from your link has this to say:

[the decision]

1) It says who wins;
2) It got her name in the papers.

I don't want to be cynical about the decision, but considering the standing issues as well as the partisan nature of the writing, I think the commenter may be right.


#16

Thunder,

Are you implying that she is a liberal activist judge?

She has an agenda?

The aclu took this to a friendly venue?

Can't be!!!

JeffR


#17

The WSJ editorial:

"Before yesterday, no American court had ever ruled that the President lacked the Constitutional right to conduct such wiretaps. President Carter signed the 1978 FISA statute that established the special court to approve domestic wiretaps even as his Administration declared it was not ceding any Constitutional power. And in the 2002 decision In Re: Sealed Case, the very panel of appellate judges that hears FISA appeals noted that in a previous FISA case (U.S. v. Truong), a federal "court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." We couldn't find Judge Taylor's attempt to grapple with those precedents, perhaps because they'd have interfered with the lilt of her purple prose."

http://www.opinionjournal.com/editorial/feature.html?id=110008816

Now, the good judge didn't even bother addressing Truong and In re Sealed Case, but had time to pen diatribes about the US having no hereditary monarchs?

Curiously, Bush critics maintain they are apopletic over violations of 'separation of powers' - but as the judiciary continues to venture into policymaking territory, the critics turn their head, whistle, and walk by like they never saw a thing.


#18

thunder,

The funny thing is that I've been linking to comments from professors who are either agnostic on the surveillance program or who actually think it was unconstitutional, illegal (due to FISA violation) or both. You should see what the defenders of the surveillance program have to say about the decision...


#19

I think it's a safe bet that the 6th Circuit will grant this DOJ request for appellate review:

http://www.cnsnews.com/news/viewstory.asp?Page=/Nation/archive/200608/NAT20060817e.html

Now we can just hope that Judge Boggs is on the panel...


#20

Don't you know that checks and balances only apply to conservatives or others taking legal positions that critics don't like?