Sometimes you have to look at your opponent's propaganda to get a realistic sense of your own side's weaknesses—call it an inoculation against groupthink. A case in point is this Aug. 21 analysis of the recent court ruling on the Bush telephone surveillance program from TCS Daily [2] (for "Technology, Commerce, Society"). For the suppoedly "libertarian" wing of the free-market right, these guys show little outrage at government snooping. But this piece does reveal why the Detroit district court's ruling is ultimately a weak defense of freedom. The note of "optimism" that this piece ends on is worrisome. Emphasis added.
When Bad Decisions Go Good
by Michael Rosen
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.
See our last post on the surveillance scandal [3] and the Hamdan decision [4].
