Federal Court Finds NSA Eavesdropping Program Unconstitutional

In a ruling last week, the U.S. Court for the Eastern District of Michigan found the National Security Agency's (NSA) warrantless domestic spying program to be in violation of the First and Fourth Amendments and the separation of powers. The decision came on a case filed by the American Civil Liberties Union (ACLU) challenging the legality of the NSA program by arguing that the rights of several journalists and academics had been violated.

Judge Anna Diggs Taylor ruled that the NSA program violates the First Amendment, because of its restricting effect on communications between U.S. citizens and people in Middle Eastern countries. Many of the communications of those represented by the ACLU were with individuals from the Middle East, and they have reason to believe that they were subject to the NSA program. The represented journalists and academics reported the inability to continue these communications due to the chilling effect of the program.

Taylor also found the program to be in violation of the Fourth Amendment, because Internet and telephone communications were seized without a warrant or court approval, violating the protection against unreasonable searches and seizures. Finally, Taylor found that the program exceeds the powers of Article II of the Constitution, which spells out presidential powers, and violates the separation of powers between the executive and legislative branches.

Much of the ruling focuses on dismissing the Department of Justice's (DOJ) claims of state secrets privilege and lack of standing. DOJ argued that the state secrets privilege applied because information necessary for debating the program's legality cannot be disclosed, lest the nation's security be at risk. The court accepted this state secrets argument in dismissing the plaintiff's challenge of the NSA's data-mining program, which reportedly collects thousands of domestic calling numbers but not the contents of calls. However, Taylor found the state secrets claim in respect to the Terrorist Surveillance program (TSP), which monitors the content of communications, to be "disingenuous and without merit."

The decision was a huge blow to the administration's argument that the president has inherent constitutional authority to conduct a domestic surveillance program in the name of fighting terrorism. The opinion directly contradicts such claims by arguing that, "There are no hereditary Kings in America and no powers not created by the Constitution. So all 'inherent powers' must derive from the Constitution."

Taylor's opinion quickly received strong criticism by not only the President and the Republican National Committee but also from many legal scholars and newspapers. President Bush predicted that an appeals court would overturn the decision, stating that "[t]hose who herald this decision simply do not understand the nature of the world in which we live."

Many legal scholars agreed with the court's eventual findings on the illegality of the program, but disagreed with Taylor's reasoning. Yale Law School professor Jack Balkin stated, "Although the court reaches the right result--that the program is illegal, much of the opinion is disappointing." Balkin goes on to note that, "because the court's opinion, quite frankly, has so many holes in it, it is . . . clear to me that the plaintiffs will have to relitigate the entire matter before the circuit court, and possibly the Supreme Court."

The Washington Post stated that the NSA program "exists on ever-more uncertain legal grounds," but that "as a piece of judicial work--that is, a guide to what the law requires and how it either restrains or permits the NSA's program--her opinion will not be helpful."

The decision was immediately appealed by DOJ and that appeal will likely soon be heard by the Sixth Circuit. Meanwhile, over 30 cases challenging various aspects of NSA's TSP and data-mining program continue to make their way through the judicial system.

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