But I do read a fair share of court decisions.
Earlier this week,
the NSA's warrantless wiretapping program was found unconstitutional by US District Court judge. Now, lots of talk has been going on about the decision. Some of it is rather hyperbolic, so I thought I might talk for a bit about the issues on which the case was decided by providing brief sumaries of the major points of the judge's decision.
The government attempted to have the case thrown out of court on the bassis of two issues: plantiffs lack of standing and the state-secrets exception. To the former, injury and a method of repairing the injury are all that is required (the method of redress is left as an excersize to the reader).
To Injury - The plantiffs who brought this case were lawyers, journalists and educators. In the course of doing their occupations, they communicated with people who might fall under the definition of monitored people as set forth by the Bush Administration (people who are terrorist suspects, associated with terrorist groups). Essentially, all three groups claimed that they were harmed in the going about of their occupations by the Terrorist Surveillance Program by being unable to talk to their clients, sources, witnesses, etc. due to the forementioned client's, source's or witness's fear of being monitored.
To State-secrets - State secrets privilege takes on two forms in US case law. The first kind is used in cases in which an individual is suing the government to honor its agreements under a secret contract (e.g., forcing the government to pay one of its spies). This kind was deemed immaterial to the case at hand. The second kind "deals with the exclusion of evidence because of states secrets privilege" (pg 4). These cases revolve around the government being unable to sustain a case without revealing state secrets. Essentially, if a case falls into this category the government says, "We can't defend this case because doing so would require revealing sensitive information." Here, Judge Taylor decided that enough information about the program existed in the public arena already to make a competent ruling. In my opinion, this is most likely the area in which this case will be argued on appeal.
With those two issues sorted out, the case was kept in play. Thus the issues of the plantiffs case were considered. There were four arguments made against the program: violating the first amendment (free speach/association), violoating the fourth amendment (privacy/searches), seperation of powers argument, and exceeding satutory powers.
Fourth Amendment - Essentially, since no warrant is in evidence AND the program does not follow the rules set forth in
FISA, it is unconstitutional. The judge here uses the word obviously to describe this ruling and it isn't hard to see why: the fourth amendment clearly requires that searching or seizing require warrants. Here there are none. Now, FISA exists to allow the government some leaway in such matters, but since it isn't being followed here -- no dice.
First Amendment - Here the argument is built largely on the fourth amendment arguement with a few things tacked on to make it first amendment specific. The gist of it is that by searching someone, you can find out things about that person that might be protected under the first amendment. Personally, I don't think this is the strongest argument here, but again I am not a lawyer.
Statutory Powers - The crux of the issue lies in this argument. The reasoning goes something like such: There already exists laws governing the monitoring of people via wiretaps without them knowing (i.e., FISA). Since there is law there, the President is required to uphold these laws, not create new policies. He created new policies without getting congress to changes the law. Bam, it's unconstitional.
Seperation of Powers - This issue is tightly tied into the statutory powers problem. The argument hinges on the definition of the roles of the President and the Congress in the Constitution. The Congress makes laws and the President enforces them. Congress had already made law in this area, but the President decided that he didn't like it so he made new law (the Terrorist Surveillence Program).
The President and his representatives have said that the Authorization to Use Military Force of 2001 gave him the authority to enact the Terrorist Surveillence Program. Judge Taylor rejects this notion for several reasons.
1. The AUMF makes no mention of intelligence matters.
2. The AUMF, if it were read to provide such powers, would be in direct opposition to both FISA and the Constitution.
3. The AUMF is a very general document and more specific documents (i.e., FISA) are chosen over general ones when analyzing law.
4. Even if the AUMF did apply, it violates first, fourth and seperation of powers issues.
The other argument is one of "Inherent Executive Power." Here, Judge Talyor takes a very dim view. Perhaps one quotes sums it up best:
The Government appears to argue here that ... [the President] has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.
Ultimately, if you want to understand the ruling, read it for yourself. It is only 44 pages long. This is not meant to be a complete airing of the issues, just something to clear up some misconceptions that seem to be flying about. I am still not a lawyer.
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