BREAKING: Federal Court Strikes Down Warrantless Wiretapping

August 17, 2006

U.S. District Judge Anna Diggs Taylor in Detroit has declared the Bush Administration's warrantless wiretapping program is unconstitutional, and has issued an injunction halting the program.
UPDATE #1: The court's opinion is available here.
UPDATE #2: Judge Taylor's opinion holds that the Administration's warrantless wiretapping program violates both the First and the Fourth Amendment. It begins by noting that the Plaintiffs were legitimate lawyers, journalists and scholars who are no longer able to communicate with sources:

They conducted regular international telephone and internet communications for various uncontestedly legitimate reasons including journalism, the practice of law, and scholarship. Many of their communications are and have been with persons in the Middle East. Each Plaintiff has alleged a "well founded belief" that he, she, or it, has been subjected to Defendants' interceptions, and that the TSP not only injures them specifically and directly, but that the TSP substantially chills and impairs their constitutionally protected communications. Persons abroad who before the program spoke with them by telephone or internet will no longer do so.

The opinion notes that the FISA statute was enacted with an eye to Executive needs, and states that this substantially weakens the Adminisration's case:

In enacting FISA, Congress made numerous concessions to stated executive needs. They include delaying the applications for warrants until after surveillance has begun for several types of exigencies, reducing the probable cause requirement to a less stringent standard, provision of a single court of judicial experts, and extension of the duration of approved wiretaps from thirty days (under Title III) to a ninety day term.
All of the above Congressional concessions to Executive need and to the exigencies of our present situation as a people, however, have been futile. The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in violation of the Fourth Amendment.

In response to the Administration's claim that the President, absent an act of Congress, has the power to engage in warantless wiretapping, the court invokes the words of James Madison:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

UPDATE #3 (Blog Roundup):

  • Think Progress notes that this court decision will likely inspire the White House to push for Senator Arlen Specter's "sham" legislation to amend FISA.
  • Glenn Greenwald has an in depth discussion of the decision. Among his observations is:

    the court made its scorn quite clear for the administration's Yoo theory of executive power that, as the court put it, "there are no hereditary kings in America and no powers not created by the Constitution." Citing Youngstown again, the court made clear that even in time of war, and even with regard to the President's Commander-in-Chief powers, the President is subject to constitutional restrictions -- a proposition long unquestioned in our system of government until the Bush administration.

  • The National Review's Corner calls this a "TERRORIST FRIENDLY RULING," and Red State says that democracy is a "suicide pact."
  • Chris Bowers of MyDD calls this ruling a "great ruling for defenders of liberty and privacy."
  • Jack Balkin, while pleased by the result of the opinion, worries that it may not be sufficiently airtight to survive an appeal:

    must say that the court's analysis is not very strong. It depends heavily on the fact that the President has violated the First and Fourth Amendments, which, I think, are the weakest arguments against the program. If those arguments go away, the separation of powers argument it offers is not very good, although in fact there are very good arguments for why the program does in fact violate the separation of powers, as well as FISA itself. The fact that the court does not bother to meet the government's claim that FISA is unconstitutional is also quite unwise, in my view. Indeed, I'm mystified by the court's refusal to draw on well publicized debates over the legality of the program between Justice Department officials and legal academics and commentators that reheases the best arguments pro and con, or, for that matter, the reasoning of the Supreme Court's Hamdan decision, handed down this June, which is, in my estimation, precisely on point.