Positive Liberty

Anna Diggs Taylor, come on down. You’re the next contestant on Name That Activist Judge. Taylor, a Federal judge in Michigan’s eastern district, has granted the plaintiffs’ request for an injunction against the NSA’s warrantless surveillance programs. That, of course, will mean she will immediately be branded a judicial activist, a liberal ideologue, and a terrorist sympathizer by the STACLU crowd (without any actual legal analysis of the opinion, of course; the mere fact that she did something they don’t like is all the proof they need, facts and legal reality be damned). Read the full ruling here. I’m just beginning to read the ruling now, so I’ll have more analysis later.

Update: Wow, this is really a fascinating decision. The decision essentially has two parts to it. The first is whether the court can even consider the case at all due to the state secrets privilege. That’s called a justiciability question. The government is arguing that because the discovery in the case could result in the revelation of state secrets that are vital for national security reasons, the court cannot even consider the case. Judge Taylor constructs a very clever argument on this basic question of justiciability, saying that the plaintiffs have established a prima facie case for the unconstitutionality of the NSA’s program without needing any additional information other than what the administration has already admitted publicly.

Specifically, she says, the administration has publicly admitted the following: A) The TSP program exists; and B) It operates without warrants. The court therefore concludes, “As the Government has on many occasions confirmed the veracity of these allegations, the state secrets privilege does not apply to this information.” Further, the ruling says that the plaintiffs are not seeking any additional discovery, and argue that the court can grant summary judgment based solely on the facts of the case that are already on the public record and admitted to by the government.

In other words, they are arguing that the court can consider the constitutional and statutory questions based solely on facts already publicly admitted to, without ever needing to reveal any more information about the program. On that question, I think the judge is absolutely right. The constitutional and statutory questions do not require knowing who or what was actually intercepted by the NSA. Does the FISA law allow warrantless wiretaps? The answer is no. Does the Constitution allow searches to take place without a showing of probable cause? Again, the answer is no. The government has already admitted that they are not following either the statutory or constitutional standards – end of story.

So once she has established the premise that the state secrets privilege cannot be invoked to prevent judicial review in this case because no additional discovery is required in order to adjudicate the constitutional and statutory issues, she then moves on to consider those questions and rules in favor of the plaintiff (and rightly so, as explained above). Thus, she rules that the program is contrary to both statutory and constitutional requirements and issues a permanent injunction against the program, effective immediately.

Will the ruling stand up? Frankly, I doubt it. I think it should, but I don’t think it will. It will be immediately appealed to the 6th circuit court of appeals, where I think that even if the court agrees with her on the basic premise, they will probably knock the case down on the basis of standing. The argument will be that the plaintiffs can’t show actual standing because they can’t show that their phone calls were intercepted without revealing details about the program not in evidence publicly at this time. Precedents support that conclusion and I fully expect the 6th circuit to rule that way.

But here’s the problem: it makes the administration’s unconstitutional actions immune from judicial review completely. It’s a perfect mobius strip of logic: we can’t tell you who is surveilled under the law because of the state secrets privilege, and if you don’t know who is surveilled you can’t prove you have standing. That means there is simply no check at all on executive power, something that constitution clearly did not intend. Judge Taylor addresses this point eloquently:

Although this court is persuaded that Plaintiffs have alleged sufficient injury to establish standing, it is important to note that if the court were to deny standing based on the unsubstantiated minor distinctions drawn by Defendants, the President’s actions in warrantless wiretapping, in contravention of FISA, Title III, and the First and Fourth Amendments, would be immunized from judicial scrutiny. It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights. The three separate branches of government were developed as a check and balance for one another. It is within the court’s duty to ensure that power is never “condense[d] … into a single branch of government.” Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion). We must always be mindful that “[w]hen the President takes official action, the Court has the authority to determine whether he has acted within the law.” Clinton v. Jones, 520 U.S. 681, 703 (1997). “It remains one of the most vital functions of this Court to police with care the separation of the governing powers . . . . When structure fails, liberty is always in peril.” Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 468 (1989) (Kennedy, J., concurring).

Because of the very secrecy of the activity here challenged, Plaintiffs each must be and are given standing to challenge it, because each of them, is injured and chilled substantially in the exercise of First Amendment rights so long as it continues. Indeed, as the perceived need for secrecy has apparently required that no person be notified that he is aggrieved by the activity, and there have been no prosecutions, no requests for extensions or retroactive approvals of warrants, no victim in America would be given standing to challenge this or any other unconstitutional activity, according to the Government. The activity has been acknowledged, nevertheless.

It is absurd for the courts to say that no one could possibly have standing to challenge the unconstitutional actions of the executive branch. If no one has standing, then the executive branch has de facto unlimited and arbitrary authority to do anything it wants to anyone it wants as long as it invokes the state secrets privilege. I can’t imagine any prospect more obviously contrary to the intent of the Constitution, which was designed explicitly to prevent this kind of unimpeded power by any single branch of government.