Today’s Ruling

(This is kind of more important than JonBenet.)

In today’s decision in ACLU v. NSA, the District Court took, head-on, the arguments advanced some months ago by the Attorney General, which were commented upon in January right here in this very blog. The Court, in the person of Judge Anna Hicks Taylor (a Carter appointee) found one of the government’s arguments valid, but most of them lacking.

Judge Taylor ruled in favor of the government on the data-mining issue, specifically that the case could not be adjudicated without disclosure of classified information and therefore that portion of the case was simply not justiciable. The data-mining was one of the issues I have had the most concern about because by definition it involves some level of governmental scrutiny over a very broad range of communications, the bulk of which, by necessity, will not even create a reasonable suspicion of untoward activity.

But, after that, the government started taking some hits. In particular, the ACLU Court found that the Authorization for the Use of Military Force passed by Congress in the wake of the September 11, 2001 attacks on New York and Washington is itself harmonizable with prior Congressional activity regulating the President’s exercise of powers granted to him by Congress, and also harmonizable with the Constitution. However, the manner of the exercise with respect to the NSA’s warrantless wiretaps (tactfully called the “Terrorist Detection Program” for political gloss) was not harmonizable with FISA, the First Amendment or the Fourth Amendment. Judge Taylor also made short work of the “inherent powers” argument that the President is the Commander in Chief and therefore can do what he wants as the head of the military:

In the Youngstown case the same “inherent powers” argument was raised and the Court noted that the President had been created Commander in Chief of only the military, and not of all the people, even in time of war. Indeed, since Ex Parte Milligan, we have been taught that the “Constitution of the United States is a law for rulers and people, equally in war and in peace. . . .” Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866). Again, in Home Building & Loan Ass’n v. Blaisdell, we were taught that no emergency can create power.

I hadn’t given a lot of thought to the First Amendment angle and I’m not sure that it holds up very well. But I’ve always been a believer in the Fourth Amendment side of things, and the decision made an interesting historical linkage, delving into pre-Revolutionary history to illuminate the Framers’ minds regarding His Majesty’s use of General Warrants in the early 1770’s to seize papers, pamphlets, printing presses, and persons suspected of spreading sedition. (Geez, TL, alliterate much?) So that deserves some thought — was the President claiming for himself the modern-day equivalent of a General Warrant? Either way, the Court was entirely correct to note:

…the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all “inherent powers” must derive from that Constitution.

Usually, the best parts of an opinion come at the very end. But I was particularly moved by this passage, which is smack-dab in the middle:

It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights. The three separate branches of government were developed as a check and balance for one another. It is within the court’s duty to ensure that power is never “condense[d] … into a single branch of government.” Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion). We must always be mindful that “[w]hen the President takes official action, the Court has the authority to determine whether he has acted within the law.” Clinton v. Jones, 520 U.S. 681, 703 (1997). “It remains one of the most vital functions of this Court to police with care the separation of the governing powers . . . . When structure fails, liberty is always in peril.” Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 468 (1989) (Kennedy, J., concurring).

One of the reasons why I care so intently about the structural side of the Constitution, things like federalism and the separation of powers, is precisely what the Court is discussing here. Even more important than specific guarantees of individual rights like freedom of speech and privacy are the Constitution’s system of distributing power over multiple centers within the framework of government. By requiring different people within government to interact with one another regarding the exercise of their powers and the wisdom of how those powers are exercised, collective wisdom and collective decision-making is built in to the system. The price of this is inefficiency, but the Framers believed, and they were right, that this was a small price to pay for a government dedicated to maintaining rather than diminishing the liberty of its citizens.

Interestingly, where the Court seemed to feel it was on the weakest ground was the exigent circumstances doctrine. This received very little treatment. The Court is right to point out that the President could have sought Congressional assistance with practical difficulties in implementing the various laws like FISA which attempt to balance the government’s legitimate need for gathering intelligence and the necessity of preserving individual rights, and that the President had not done so. But I think the Court should have addressed the cases in which exigent circumstances permitted warrantless searches more thoroughly.

Rather than finish with a rhetorical flourish like other opinions I have enjoyed recently, ACLU v. NSA finishes with a quote from Chief Justice Earl Warren:

Implicit in the term ‘national defense’ is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which makes the defense of the Nation worthwhile. U.S. v. Robel, 389 U.S. 258, 267 (1967).

Quite so. Certainly we should defend America from her enemies. But we should not cease to be Americans in the process.

The case is from the Eastern District of Michigan. The Attorney General has already filed an appeal. Michigan is in the Sixth Circuit Court of Appeals, one of the most deferential of the nine circuits to the government and one of the least friendly to plaintiffs. It’s also one of the most geographically odd circuits, in my opinion; it stretches from the border of Canada on Michigan’s UP all the way down to Chattanooga, yet it only contains four states: Tennessee, Kentucky, Ohio, and Michigan. Well, that’s the way Congress drew the maps.

So I would predict that this appeal will be heard by the Sixth Circuit within about a year, and the government will prevail at the intermediate stage. From there, of course, the case will be picked up by the Supreme Court; whether on a circuit split with what we may reasonably anticipate will be an adverse ruling to the government from the Ninth Circuit from the pending appeal of the case of Hepting v. AT & T Corp., 2006 WL 2038464, (E.D. Cal. June 20, 2006) case (which the government won at the District Court level).

It certainly seems as though Judge Taylor, in writing today’s opinion, was fishing for friends on the High Court, noting wherever possible when she was quoting from opinions written by sitting Justices (in particular, Justice Kennedy and his former and frequent colleague, Justice O’Connor) and throwing in an extended discussion of original intent clearly aimed directly at Justices Scalia and Thomas (and by extension, Roberts and Alito). Whether this ploy is successful or not is a good question; Eugene Volokh, one of my intellectual heroes, criticizes her for the shrill and partisan tone she strikes, and his colleague Dale Carpenter suggests that she blew the call on standing.

It will be at least 2008, and more likely the summer of 2009, before the Supreme Court makes its ruling on this issue and we have the last word. By then, the personnel on the Court may change; by then, we will have a new President. So the world is very likely to look a little bit different when this ruling reaches its final form than it does today. Hopefully, the Constitution looks the same way then as it does now, too. Because the Constitution is what this is all about.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.