TCS Daily


When Bad Decisions Go Good

By Michael Rosen - August 21, 2006 12:00 AM

When is a bad decision good? When it yields unexpectedly good returns.

On Thursday, in a Detroit federal court, Judge Anna Diggs Taylor issued a disturbing and flawed ruling that essentially struck down the Bush administration's Terrorist Surveillance Program (TSP).

The plaintiffs in this case -- including the inscrutable Christopher Hitchens, an otherwise resolute ally of the president's in the war against Islamic fascism; the ACLU; the Council on American Islamic Relations; Greenpeace; the publisher of The American Prospect; an NYU professor; and assorted attorneys -- apparently hand-picked a court and a judge that would deliver the desired result.

But the decision will be appealed to the Court of Appeals for the Sixth Circuit, where the administration is confident of its reversal, and then to the Supreme Court, where, at least in my estimation, the TSP has a better-than-odds chance of success.

In this respect, then, the Detroit ruling is the first step on the road to the legitimation of the program -- or at least some version thereof. The first round goes to the civil libertarians, but several further rounds await.

So how did the ACLU et al. win this first round?

The motley crew of plaintiffs argued that the TSP prevented them from candidly and fairly communicating with their counterparts in foreign countries. In other words, because they knew there was a chance the government was listening in on their conversations, the journalists could not protect their international sources' confidentiality, the lawyers could not vigorously represent their overseas clients, and others simply could not speak forthrightly to people abroad.

Several of the plaintiffs freely acknowledged that it was necessary for them to "communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations."

Like most of the mainstream media, they argued that the wiretaps violate the Foreign Intelligence Surveillance Act of 1978 (FISA) -- which requires a wiretap warrant -- as well as the Fourth Amendment, which prohibits warrantless searches and seizures.

In response, the government, first, invoked the "state secrets privilege" by claiming that mounting any kind of defense to the lawsuit would inherently involve divulging information of the utmost sensitivity. Citing precedent, the administration contended that the case had to be dismissed for this reason alone.

The administration also argued that the plaintiffs' allegations were purely speculative; they had no actual evidence that their calls and emails were being monitored. Furthermore, the government contended, the program itself was well within the bounds of statutory and constitutional requirements.

But effectively eviscerating the administration's assertion of the state secrets privilege, Judge Taylor found the government officials' "argument that they cannot defend this case without the use of classified information to be disingenuous and without merit." Because the president and the attorney general had previously announced the program's existence and had outlined its broad contours, the court ruled that they had waived the privilege.

Judge Taylor also found that the plaintiffs' alleged injury was "concrete and particularized" and not merely speculative mainly because "the TSP is not hypothetical, it is an actual surveillance program." [As an aside, the opinion is marred by an embarrassing number of grammatical, substantive, and citation errors.]

The court also drew the breathtaking conclusion that if the Court were to credit the administration's position, "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."

Judge Taylor, in an inversion of reality, next described FISA and similar measures as "Congressional concessions to Executive need and to the exigencies of our present situation as a people," concessions that had proven futile as the president has grabbed more and more power through actions that are "obviously in violation of the Fourth Amendment." (my emphasis) The court even found that the president had violated the plaintiffs' First Amendment rights to free speech, along with the Separation of Powers.

Democrats and the Left pounced upon the ruling as evidence of Bush's cravenly illegal conduct. Finally, Jack Cafferty crowed, someone has stood up to the administration and its dictatorial attitude! On the heels of June's Hamdan case, the president and his cronies now appeared to be on the ropes.

But the court's characterizations are inapt, at best. If anything, the establishment of the FISA court marks an infringement on the executive's prerogative. Although it has been described by liberals as a "rubber-stamp court," its warrant requirements are nonetheless onerous -- and especially ill-suited to both the exigencies and the breadth of the electronic surveillance apparently being carried out by the NSA.

Nor does the TSP "obviously" violate the Fourth Amendment by listening in on international conversations involving would-be (or actual) terrorists. If, as has been speculated, the TSP helped bring down the putative London plane bombers, it would seem to be targeting the right types of people for searching and seizing.

Even less plausible is the First Amendment argument: speech specifically designed to facilitate attacks on innocent civilians hardly qualifies for constitutional protection.

Finally, in a time of war, the executive branch's powers are at their most robust. Judge Taylor's decision glosses over Congress's post-9/11 Authorization for Use of Military Force (AUMF), holding that even if the AUMF "superceded [sic] all other statutory law, Defendants have violated the Constitutional rights of their citizens."

But despite the results of this first round, there's little reason for hand-wringing. If anything, the district court's superficial treatment of the issues will make it that much easier for the Sixth Circuit to reverse and for the Supreme Court to affirm the appellate court.

And while many on the right question the usefulness of the intervention of the judiciary in a military matter, there can be little question that an affirmation of the administration's military prerogative by the highest court in the land will strengthen the president's hand -- and all of our resolve.

In the meantime, congressional Republicans are at work amending the FISA law to more explicitly permit programs like the TSP. Democrats may seek to thwart that effort -- but only at their electoral peril.

The decision highlights one additional item: the overwhelming need for secrecy in all of these proceedings.

Of course, federal judges receive and review highly sensitive documents in camera all the time. But it is exceptionally rare for them to examine classified national security information.

Furthermore, judges' law clerks and chambers staff inevitably wind up with access to even the most sensitive material. And while, as a former law clerk, I have every confidence in the discretion and integrity of the vast majority of law clerks -- who undergo basic fingerprinting checks before joining a chambers -- it must be acknowledged that none of them carry the kind of governmental clearances that would allow them to view top secret information.

Thus, it would be more than prudent to establish a specialized court to handle these matters in which, as in the FISA court, particular judges and their staff would be vetted with particular stringency.

On the whole, then, Judge Taylor's decision got just about everything wrong. But it's important to remember that we're on our way to setting everything right.

Michael M. Rosen, TCS Daily's Intellectual Property columnist, is an attorney in San Diego.

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22 Comments

On its way to the Supreme Court
But will that court get it right?

The Supreme Court
This is the same court that ruled that the govt can regulate the content of political speech.
That the govt can seize land for any reason whatsoever.
That growing corn to feed your own cattle is engaging in interstate commerce.

I wish I had as much faith as you do, that the SC will get this right.

The NYT
When the NYT attempted to defend the outing of this program, they proclaimed that since our enemies knew we were trying to monitor their conversations, detailing how we were doing it, couldn't possibly harm any ongoing investigations.

Yet the plaintiffs in this case claim that after the program was made public, their contacts stopped being as forthcoming, since they now feared that the NSA might be listening.

So which is it, did the revealing of this program have any affect on intel gathering, or did it not?

Makes you wonder...
"Several of the plaintiffs freely acknowledged that it was necessary for them to "communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations."

What got me... Greenpeace?

Defending the outing?
I find that term ("defending the outing") curious, in that if the administration followed the law when seeking to permit the NSA to wiretap calls in the first place (by going through FISA, which approves requests over 99% of the time, even post-facto), there would have been no need for anyone to "out" these practises as it would be legal due to a court order and would've therefore remained secret.

I think the administration should be doing the defending of why they chose to break the law in the first place.

How can one break a law that doesn't apply?
The problems with the FISA courts were widely discussed at the time. If you wish to review the arguments, they are still online.

that is what
is called shooting yourself in the foot.

They have lost contact with the enemy.

This is also called serendipity.

While one could have some fun and speculate that the leak was deliberate, knowing that the NYT would publish it, one could also speculate that ancient idea of saving face, was applied here by allowing the NYT to save face and learn a hard lesson.

Far from conspiracy, The RMCS encapsulates it as "aggressive serendipity".

That was a causal connection Mark.
Well done.

should have examained why C. Hitchens joined the suit
see http://advant.blogspot.com/2006/01/christopher-hitchens-joins-aclu-suit.html

Mr. Hitchens' reasoning is very similar to mine, and I write with some pertinent experience. The test of the TSP should be in results, and we're not getting any feedback about how the program is going. I don't mean that surveillance results should be shared with the public, but there should be a mechanism for congressional or judicial oversight and a mechanism for pulling the plug on non-productive programs. I know that's tough to do with any beauracratic program, in government or out, but it has to be done.

Defining moment
I think good that will come from this "leak" in that the enemies of the war on terror are being well defined. The plantiffs, The NYT, and the Jimmy Carter appointed judge that gave out this knowingly temporary ruling. The usual suspects that are all about free speech and privacy as long as they agree with it. Selective constitutionalists.

Is the enemy THAT stupid?
I assume that every phone call and posting of mine goes through the NSA computer. Most likely so does this list. Every corner store sells untracable cell phones. Anyone think the Moslims are sufficiently ignorant to not know this?

Some people are more paranoid than others
Every single phone call?
Just how big do you think those computers are?

According to the reporters, their contacts were that stupid.

What a wonderful idea
Can you name even one program that has been eliminated through a similiar means?

Since when do judges decide how wars are to be conducted?
Try as I might I can't find a word in the constitution about judges running a war. The Executive and Legislative branch's have clear roles, the judiciary none.

No Subject
1. ADFC. Took a concentrated effort by a dedicated group of congressmen ten years ago. Results are still debatable.

2. bits of the agriculture program sporadically lapse. I'm thinking of the mohair subsidy, but it may have resurrected.

Could you clarify
Did you mean AFDC?

2. If the mohair subsidy lapsed I have no doubt it wasresurrected as the gopher subsidy. And Congress just past ethanol a huge welfare program for farmers.

since Democrats stopped winning elections
...

You must have seen...
You must have seen the movie "Enemy of the State" and not realized that it was fiction.

It never ceases to amaze me how people can spout off on something with only a little knowledge
It never ceases to amaze me how people can spout off on something with only a little knowledge.

A simple Google search for "NSA" will lead one to http://www.nsa.gov/ .

The National Security Agency (NSA) was created by President Truman to bring together all the code breaking units of the military.

Its mission has always been gathering signals intelligence against our enemies. Select members of Congress have always been briefed on what they were doing with the money they voted for funding of the NSA.

There is a law that unauthorized disclosure of Intelligence Means and Methods is punishable by 20 years in prison. Signal intelligence means and methods are especially susceptible to counter measures which can reduce or eliminate the amount and quality of information. That is why information from the NSA is practically never used in court cases other than courts-martial.

The NSA traditionally has only monitored overseas communications. Before 9/12/2001 monitoring communications between enemies outside the USA and people inside the USA was done by FBI and CIA counter-intelligence units.
The TSP only expanded to NSA mission to include communications where one party was overseas and the other was in the USA.

Monitoring communications does not violate the 4th Amendment because it does not involve "search and seizure". Nothing is seized.

This brings up a more important issue than the TSP. What is the Constitution? Is the Constitution the written text as ratified by the 13 States and amended by the process specified in Article V? [Yes!] Or is the Constitution a "living breathing document" that is what judges say it is (in violation of Article V? [No!]

Judicial Review is not in the Constitution either.
Judicial Review is not in the Constitution either. Judicial Review was asserted by the Supreme Court in the early 1800's and Congress was not on the ball enough at that time to realize that the Court had just violated Artile V by changing the process of amending the Constitution. Congress should have impeached all the judges that unconstitutionally expanded the role of the court.

It is time for "We the people" to take back the Constitution and only elect people to Congress who are willing to fulfill their oath of office by impeaching judges who think they are legislators or dictators.

Nice catch
The problem with the courts is that they serve as a useful means to pass laws that are politically suicide. Both parties do it but it makes a fraud of the constitution and allows the unelected to rule over us. All judges need to be removed and laws have a 5 year life. No judge may make an interpretation but if he can't make a decision swend it back to the legislature for resolution or refuse to review the case.

Unfortunately, the living constitution view prevails
Until the people get enough backbone and common sense to realize a living constitution is no constitution but just the flavor of the day, to be altered at the whim of only five people who are unelected and unaccountable.

I wonder if they think it is more alive than a fetus.
In Toronto animal rights are big play.
A woman can get an abortion on whim.

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