The domestic spying opinion
Publius calls a federal judge's recent opinion on the illegality of the NSA warrantless wiretapping program a legal atrocity and Scott Lemieux describes the legal reasoning behind the opinion as defective.
Publius thinks it's inappropriate that the opinion is based on the judge's interpretation of the Constitution and the FISA law, plus a set of undisputed claims about the nature of the government's secret spying program (known in the opinion as "TSP", short for "the secret program").
Note that the government invoked national security privilege to avoid confirming or denying that it spied on the people trying to sue it.
Publius considers it outrageous that, "The Court — in its infinite wisdom — decided prior to any discovery that it had seen enough facts to determine that none of them are necessary to any viable defense that may or may not be raised."
Publius knows way more about the law than I ever will, but as a matter of logic, I think he's off-base.
In order to appreciate the structure of the opinion, it is important to consider the order in which the government's challenges would have to be addresed. In this case, the first question raised by the government was whether these particular plaintiffs had standing to sue the government for violating their legal and constitutional rights by TSP. People can't just sue over laws or programs they dislike. In order to have standing to sue, you have to convince a court that you have been directly impacted by the law or policy you're launching the lawsuit against.
In this case, the plaintiffs are a coalition of lawyers, journalists, scholars, and activists who regularly communicate internationally with those whom the government considers to be members of al Qaeda, members of groups affiliated with al Qaeda, or agents of al Qaeda or its affiliates. According to the president and other senior officials, TSP is a warrantless wiretapping program directed against people in the USA who call or email that kind of suspicious person.
The plaintiffs believe that the government has monitored their calls. However, more importantly, they claim that they belong to a class of people whom the government asserts the right to spy on. These two claims are distinct, the second being far more important than the first.
The plaintiffs argue that the program infringes on their constitutional rights because the government's assertion of the right to spy on them hampers their ability to conduct certain constitutionally-protected kinds of business.
For example, the lawyers say they can't effectively represent their overseas clients because they cannot offer their clients privileged communications, and the journalists say they can't report the news because their sources are no longer willing to talk them on the phone or through email. Many of the plaintiffs also have to spend extra time and money traveling to meet their contacts in person because they know that their telephone lines and emails aren't secure. The government disputes none of this.
Therefore, the plaintiffs argued, their First Amendment rights too free speech and freedom of association are violated by the existence of the secret program. Ultimately, the court agreed sided with them.
Recall that the government refused to confirm or deny that it spied on any of the plaintiffs. Government lawyers say they can't reveal their domestic espionage targets without compromising national security. Naturally, that's very convenient for the government, because at first glance, the plaintiffs' right to sue depends on their ability to establish that they were spied on.
So, here's why the judge dragged in the First Amendment issue before specifically addressing the Fourth Amendment issues: If the government had admitted to spying on the plaintiffs, the suit could simply have been about the plaintiffs' rights under the Fourth Amendment and FISA. Alternatively, if the government denied spying on these people, the case could then have advanced to the discovery phase, in which each side would have had the right to collect evidence to settle the factual dispute before the court.
During the discovery phase, the plaintiffs would ordinarily have had the right to demand government documents, internal emails, and other evidence that they were, in fact, the victims of domestic spying.
However, due to to the sensitive national security issues involved in this case, the plaintiffs even promised upfront not to ask anything that wasn't already public information. They said they were prepared to rest their case on the public statements that the president and senior members of the United States government had made regarding TSP. But that wasn't good enough for the government.
Note that the government did not dispute that potential for spying interfered with the plaintiffs' businesses. Nor did it dispute that the plaintiffs' concerns for their clients and their own interests were well-placed, given the scope of TSP. Obviously, the government didn't accuse the president of lying about the scope of TSP.
Rather, the government maintained that the plaintiffs' inconvenience was merely due to their own anxiety about being spied on, which it argued was merely subjective and not "constitutionally congnizable."
In general, a hypothetical risk isn't enough to give someone standing to sue. Since the government invoked privilege to preempt any inquiries about whether the plaintiffs were in fact being monitored through TSP, the risk of surveillance might seem to be hypothetical--because, as far as the court was concerned, there was no admissible proof that the people suing the government were actually monitored. That might have been enough to derail the suit altogether.
However, the judge concluded correctly that the warrantless wiretapping program isn't a hypothetical risk for these plaintiffs. The plaintiffs aren't claiming that they were injured because the government spied on them. Rahter, they claim they have been injured because TSP places them in a category of persons who are no longer secure from unreasonable search and seizure. The government does not contest that the plaintiffs are being intimidated and/or inconvenienced in their work, nor does it dispute that they are fair game for domestic spying, nor does it contest that there is a direct causal connection between being insecure from unreasonable search and seizure and being less effective in one's constitutionally-protected duties as a lawyer, journalist, or activist.
Most importantly, the government didn't contest the scope of the domestic spying program, as described repeatedly by the president and senior officials.
Therefore, as far as the court is concerned, it's a mutually acknowledged fact that these plaintiffs have been marked by the state with a big red "FEDS, LISTEN HERE" sign, and that this branding makes it harder for them to do their jobs.
Now, you might argue that this inconvenience isn't a violation of the plaintiffs' constitutional rights. To me, the biggest question is whether these interferences actually violate the plaintiffs' right to free speech. That's a technical issue that I'll set aside for the moment.
However, I submit that all the relevant factual issues are known, and therefore that Publius's central objection is unpersuasive. The issue is whether the government has the right to spy on people who belong to certain groups without warrants, and in contravention of FISA.
Clearly the government has no general right to spy on people without warrants as a matter of law. The Fourth Amendment and FISA are sufficient to invalidate this program.
Note that the government has only offered legal defenses of the president's power to spy on people without warrants. These are constitutional arguments, not factual claims. The relevant fact is that the United States at war, a dubious assertion, but not one contested in this case, AFIAK.
This lawsuit is about the existence of a program with a certain undisputed scope. The specific facts, which the government declines to discuss, are not relevant. The case must rest on the stated justification for the program, not hypothetical extraneous circumstances that the government might not be able to reveal.
The Fourth Amendment and FISA violations are the backbone of this opinion. Some critics have argued that raising the First Amendment issue is a distraction from the main issue. However, the discussion about the plaintiffs' First Amendment rights serves a vital role in the larger decision-- to establish the plaintiffs' standing to sue.
You can argue that any constitutional rule has exceptions in theory but this opinion doesn't hinge on the facts of any specific case. We know because government chose to preempt any discussion about the merits of any specific accusation of spying. There are no specific secret circumstances that would authorize the government to create a program like the one they acknowledge for the reasons they cite. As far as the government is concerned, their authority stems from the U.S. being at war, a circumstance which allegedly authorizes the president to disregard the law and the constitution at will.
These are not secret facts. No details about who is or isn't being targeted by this program are relevant. Theoretically, any individual might be a legitimate target for sci-fi-level bizzarofacts that we can only imagine, but this lawsuit is about the legitimacy of a program that targets a defined class of people for publicly disclosed reasons.
This case is about the existence of a program with an undisputed scope that is impinging upon the security of the plaintiffs in an undisputed way--in violation of their Fourth Amendment rights and federal law. The fact that some plaintiffs are also having their First Amendment rights violated in virtue of their inability to guarantee attorney-client privilege or report the news is their foot in the door for this lawsuit.