
“Liberty” Memphis, TN. ©Beringer-Dratch.
Our system, many seem to forget, is a marvel of checks and balances. Perhaps it was a reflection of the growing Industrial Revolution where machines were becoming more functional. The Framers of the Constitution wrote into their version of levers and pulleys, buttons and bells and whistles. The President has great, administrative power. The Congress speaks for the people (and theoretically an ear for their needs) and the Judiciary watches over everything so that no one goes off on wild and dangerous tangents — especially in times of stress.
In the Federal District Court of Eastern Michigan, Judge Anna Diggs Taylor just wrote the opinion in the case of the
AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION FOUNDATION; AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN; COUNCIL ON AMERICAN-ISLAMIC RELATIONS; COUNCIL ON AMERICAN ISLAMIC RELATIONS MICHIGAN; GREENPEACE, INC.; NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; JAMES BAMFORD; LARRY DIAMOND; CHRISTOPHER HITCHENS; TARA MCKELVEY; and BARNETT R. RUBIN
versus
NATIONAL SECURITY AGENCY / CENTRAL SECURITY SERVICE; and LIEUTENANT GENERAL KEITH B. ALEXANDER, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service.
A PDF download of the entire case is available and fascinating. The case number is 06-10204
Judge Anna Diggs Taylor is 73 and was the first African-American woman to serve on the District Court in the Michigan district, the first to be chief federal judge. She attended Barnard and Yale Law School. She is not a judicial force to be ignored.
She, Judge Diggs Taylor, begins the opinion identifying the action as “a challenge” to a secret organization in the government she will call TSP which was “undoubtedly” set up by the N.S.A. (the National Security Administration) by the year 2002, which “… intercepts without benefit of warrant or other judicial approval, prior or subsequent, the international telephone and internet communications of numerous persons and organizations…” and which continues into the present day. The secret government group was “… authorized by the President’s secret order during 2002 and reauthorized at least thirty times since.”
The plaintiffs are groups and individuals who regularly communicate with others on an international basis by telephone and internet “… for various uncontestedly legitimate reasons including journalism, the practice of law, and scholarship.” These people have reason to think that the U.S. government is routinely intercepting their private communications. They are, by the government’s admission, “U.S. persons”.
Plaintiffs have alleged that the TSP violates their free speech and associational rights, as guaranteed by the First Amendment of the United States Constitution; their privacy rights, as guaranteed by the Fourth Amendment of the United States Constitution; the principle of the Separation of Powers because the TSP has been authorized by the President in excess of his Executive Power under Article II of the United States Constitution, and that it specifically violates the statutory limitations placed upon such interceptions by the Congress in FISA because it is conducted without observation of any of the procedures required by law, either statutory or Constitutional.
We may not be surprised to learn that the government’s defense was primarily based on “national security” and on the concept of “state’s secrets privilege”. These concepts have been upheld often since the Civil War (the Southerners’ “War Between The States”) in a landmark case (Totten v. United States) where Totten sued the government to pay for spy services he did for them during the War. The courts ruled for the government because “The secrecy which such contracts impose precludes any action for their enforcement.” This rule kept people from suing for defective war planes in WWII and for Viet Nam era suits against the C.I.A. because “… It is self-evident that the disclosures sought here pose a “reasonable danger” to the diplomatic and military interests of the United States.”
Then came Ellsberg v. Mitchell where the court noted the “absolute” nature of the secrets defense but very carefully pointed out that,
However, because of the broad sweep of the privilege, the Supreme Court has made clear that “[i]t is not to be lightly invoked.” Thus, the privilege may not be used to shield any material not strictly necessary to prevent injury to national security…
In this case the government used, as part of its’ defense, that they could not defend themselves because any defense would force the disclosure of state secrets. Judge Diggs Taylor didn’t go against the secrets rule. She distinguished the fact that these plaintiffs were not asking for any further investigation which might uncover state secrets. Their suit was based only on what the government had readily admitted,
Defendants have publicly admitted to the following: (1) the TSP exists; (2) it operates without warrants; (3) it targets communications where one party to the communication is outside the United States, and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.
The people suing to be able to communicate freely contend that, as journalists, lawyers and scholars (like scholars and journalists, Tara McKelvey, Larry Diamond, and Barnett Rubin) must be allowed to talk or write privately to sources, clients and contacts who could be terrorist suspects. The judge wrote that “… . 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. She reminds us that the courts exist for the purpose of checking and balancing the powers of government and that “… It is within the court’s duty to ensure that power is never “condense[d] … into a single branch of government.” 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.” “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.”
George Bush brought us warrantless wiretapping (note the “warrantless”) and therefore must face the Fourth Amendment,
The right the of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In the two-page “Judgment and Permanent Injunction” Judge Diggs orders very specifically that “IT IS HEREBY ORDERED that Defendants, its agents, employees, representatives, and any other persons or entities in active concert or participation with Defendants, are permanently enjoined from directly or indirectly utilizing the Terrorist Surveillance Program in any way…” and “… IT IS FURTHER ORDERED AND DECLARED that the TSP violates the Separation of Powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution…”
The judge is to the point (for a lawyer), organized and very direct. She has separated this case from others because we are not dealing with terrorists nor foreigners, because the Feds tried to hide behind the tired “national security” line and because real people doing real work for valid reasons were being hurt by a Presidential power play that has been allowed in the terror and fears of the past years.
Here in Blogcritics John Bambenek in “Federal Court Rules Protecting America is Unconstitutional” lets us know his orientation in the headline. This “ongoing deception”, he wrote, “… is an attempt to create hysteria that the US is becoming a “police state” and that the treats are from Republicans, not terrorists.” Judge Diggs, who just may have noticed that this is one of those opinions that is not going to be ignored during her career, did not, at any time, write or describe the case or plaintiffs in this light.
He goes on to say that “… the idea that plotting terror attacks against the citizens of the United States of America could even possible be protected by the First Amendment should make everyone who cares about the safety of their family cringe.” It sure would. However, the decision has to do with the fact that our own government is flaunting its’ power to pry into anyone’s life whether or not they are terrorists and without the required procedures and then hiding behind the specter of more murderous violence. I, for one, cannot condone either wanton murder and destruction nor the abuse of power within our fragile island of civilization in an increasingly violent world.
Mark Schannon writes in “Judge Rules Bush Domestic Wiretap Program Violates Civil Rights” a more reasonable opinion (which is to say he agrees with me and Judge Diggs).
Do I think that we absolutely must infiltrate, monitor, find and stop or destroy any terrorists who threaten Americans or America? Brother, believe it! My wife lost her leg to an anti-American gang here in our expatriate paradise (which is another story). Intelligence is going to be the deciding factor in the war against the barbarians at our gates. Even that will not be enough. As Israel has found out, this is a new century with new rules, old enemies with undiscovered strengths. We have to believe in all-out war and the burning desire of the enemy to burn down our civilization. Another group wants to raise another grey, dismal autocracy that would control the minds of men (and women if they allow them to have minds).
However — and this is a huge “however” — we cannot lose touch with the free society under a brilliant and flexible Constitution. It changes with the times but it cannot be allowed to move so far that individual rights are stomped by either mobs or faceless g-men.
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