In a major victory for the ACLU, a Michigan federal district court held the NSA’s surveillance program, a key part of the war on civil liberties, unconstitutional and ordered it ended immediately. Here’s from the opinion:
For all of the reasons outlined above, this court is constrained to grant to Plaintiffs [= ACLU] the Partial Summary Judgment requested, and holds that the TSP [= the NSA Terrorist Surveillance Program] violates the APA; the Separation of Powers doctrine; the First and Fourth Amendments of the United States Constitution; and the statutory law. Defendants’ [= NSA] Motion to Dismiss the final claim of data-mining is granted, because litigation of that claim would require violation of Defendants’ state secrets privilege. The Permanent Injunction of the TSP requested by Plaintiffs is granted inasmuch as each of the factors required to be met to sustain such an injunction have undisputedly been met. The irreparable injury necessary to warrant injunctive relief is clear, as the First and Fourth Amendment rights of Plaintiffs are violated by the TSP. See Dombrowski v. Pfister, 380 U.S. 479 (1965). The irreparable injury conversely sustained by Defendants under this injunction may be rectified by compliance with our Constitution and/or statutory law, as amended if necessary. Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution.As Justice Warren wrote in U.S. v. Robel, 389 U.S. 258 (1967):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. Id. at 264.
If you want to know what this does to the legitimacy of the spying program, check out Brian’s post below.
[tags]ACLU, NSA[/tags]
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A victory not just for the ACLU, but for the country.
Thank God for judicial review!
I hope this and the recent Hamdan decision will prompt everyone to look a bit more sceptically at Mark Tushnet’s ‘populist’ democracy (or Larry Kramer’s ‘popular constitutionalism’) arguments in Taking the Constitution Away from the Courts (1999) (sophisticated arguments, mind you).
See, for instance, this debate between Tushnet and Erwin Chemerinsky: http://www.legalaffairs.org/webexclusive/debateclub_jr0605.msp
Unfortunately, it seems consensus (from right to ‘left’) is emerging in the legal blogosphere that the arguments regarding the First Amendment are quite weak and the opinion in general is poorly argued. ‘Tis a shame.
For helpful analyses and links, please see:
Jack Balkin at Balkinization: http://balkin.blogspot.com/
ACS blog: http://www.acsblog.org/
Concurring Opinions: http://www.concurringopinions.com/
Julian Ku at Opinio Juris: http://www.opiniojuris.org/
SCOTUS blog
While ideally a win for civil liberties, I am not fond of the continued existence of the so-called state secrets privilege. Like a national security privilege, a state secrets privilege is damaging to a commonwealth dependant upon a diaphonous representative government because the public is unable to discover the illegal acts of its government that may violate rights that government is supposed to protect and enforce. If anything, the Hamdan decision shows that there are very few members of the Supreme Court still reading the Constitution literally, and that is a far more desparaging revelation than musings on removing judicial review, which is perposterous in and of itself based on the structure of the Constitution and the language in the Federalist Papers.
I suspect it makes little sense, normatively speaking, to talk of ‘reading the Constitution literally,’ a position, by the way, not found in any of the plausible theories of constitutional interpretation. There does not exist any consensual or transparent non-controversial or unproblematic literal reading of the meaning(s) of this document….