Thursday, August 17, 2006

Warrantless Surveillance Violates the Constitution

Glenn Greenwald has read the opinion in today's federal court decision in which Judge Anna Diggs Taylor declared warrantless surveillance to be unconstitutional and issued a permanent injunction against its further use by the Bush administration. Glenn's initial analysis is here, and summarized below:

  • The Bush admin's argument that judicial review of the NSA program would reveal state secrets is invalid, because the Bush admin has publicly acknowledged the program's existence and all the details of the program relevant to the plantiffs' case are a matter of public record.
  • The plantiffs have suffered harm from, and thus have standing to challenge the legality of, the surveillance program because knowing that the government may be eavesdropping on their phone calls and e-mails constitutes harm in and of itself, given that all the plaintiffs' have extensive communications with individuals in the Middle East.
  • The warrantless surveillance program violates the Fourth Amendments' ban on unreasonable searches and seizures ("unreasonable" being defined as searches carried out without showing probable cause and obtaining a warrant).
  • The program violates the First Amendment's guarantee of free speech, by creating a climate of fear in which people are reluctant to speak or write freely (the "chilling effect" argument).
  • The president is not above the law, even in wartime, even in matters of national security.
  • Congress's AUMF (Authorization for Use of Military Force) does not give the government the right to violate FISA's warrant requirement because (1) FISA is a law with very particular provisions, and eavesdropping is not mentioned in the AUMF at all; and because (2) the court has ruled that warrantless surveillance is unconstitutional, and Congress cannot make a law that violates the Constitution. (This last, of course, means that the Specter legislation rubberstamping the warrantless spy program is unenforceable.)
  • The administration's theory of executive power is nonsense, because the president is not an absolute monarch and does not have powers that go beyond those granted him by the Constitution. (In David Cole's words, Yoo's theory of executive power holds that "... because the Constitution makes the President the 'Commander-in-Chief,' no law can restrict the actions he may take in pursuit of war.")

Glenn also hilariously rounds up some of the reaction to today's decision on the right; it boils down to the fact that Judge Taylor was appointed by a Democrat (Jimmy Carter); that she is African-American and pro-civil rights (interesting thing to condemn, eh?); and that she is pro-terrorist. In addition, Bush is being urged to defy the ruling. So much for Michelle Malkin's "First and foremost we are a nation of laws."

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