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ACLU vs. NSA: Don't pop the cork on the champagne yet

The good news: Judge Anna Diggs Taylor has courageously declared that Bush's warrantless program of domestic surveillance violates the First and Fourth Amendments, the separation of powers doctrine, and FISA, is not justified under the AUMF, and is not justified under the purported doctrine of "inherent authority."

In other words, everything we've all been saying for years turns out to be true (just like Iraq, I might add). Not that anyone in the press notices, but at least they're noticing that Bush is breaking the law. (And it's not about a pathetic little blowjob, this time; it's about our rights 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"--you know, all those rights that the Founders pledged "our lives, our fortunes, our sacred honor" [DCOW] to win for us, against the monarchy of King George, and many thousands of other citizen soldiers who gave their lives, as well.

Further, Judge Taylor has granted the plaintiffs injunctive relief (which Abu Gonzales immediately appealed, of course).

But don't pop the champagne just yet; no triumphalism is warranted (especially since this decision has to run the gauntlet of a Federal judiciary system now headed by Scalito and Roberts (thanks for the great work on that cloture vote, Joe. Oh, wait....))

The bad news: The key component of Bush's twentyfirst century power grab--the NSA's datamining program that reads all your mail, all your searches, and this blog--is left in place by Judge Taylor's decision.

Worse, the court's reasoning encourages the Bush administration to ratchet up its campaign to suppress the last of remnant of a free press and ratfuck or blackmail anyone who opposes them. For those of us who believe that the criminal Bush regime is gearing up to fight "a new kind of war" against Constitutional government by targeting electronic organizing and social networking by democratic forces for strikes by "weapons of mass surveillance," that is very bad news.

First, I'll look what's to like; then, I'll look what's not to like. Read on:

I've been reading Judge Taylor's decision in ACLU v NSA, as will as the ACLU's brief. For whatever reason, I can't find a copy of the defendant's brief at the DOJ site or anywhere online--not by docket number, not by words quoted in other sources, not anywhere. So if some alert reader can give me a link, I'd be grateful.)

What's to like: I'll summarize the high points of the decision under the following headings:

The Bush regime is criminal
Yeah, Bush broke the law. Remember the "rule of law"? Gosh, happy, happy days:

[JUDGE TAYLOR]: “the FISA of 1978 [fines; imprisonment for violation] shall be the exclusive means by which electronic surveillance of foreign intelligence communications may be conducted.” [emphasis added] ... The FISA was essentially enacted to create a secure framework by which the Executive branch may conduct legitimate electronic surveillance for foreign intelligence while meeting our national commitment to the Fourth Amendment. ...

In enacting FISA, Congress made numerous concessions to stated executive needs. They include delaying the applications for warrants until after surveillance has begun for several types of exigencies, reducing the probable cause requirement to a less stringent standard, provision of a single court of judicial experts, and extension of the duration of approved wiretaps from thirty days (under Title III) to a ninety day term.

All of the above Congressional concessions to Executive need and to the exigencies of our present situation as a people, however, have been futile. The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in violation of the Fourth Amendment.

The Bush regime is tyrannical
Judge Taylor cites Federalist #47--she must have been reading Corrente; we've had our hair on fire about that one for years:

[JUDGE TAYLOR]: Our constitution was drafted by founders and ratified by a people who still held in vivid memory the image of King George III and his General Warrants. The concept that each form of governmental power should be separated was a well-developed one. James Madison wrote that:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

THE FEDERALIST NO. 47, at 301 (James Madison). [emphasis added]

In this case, if the teachings of Youngstown are law, the separation of powers doctrine has been violated. The President, undisputedly, has violated the provisions of FISA for a five-year period. Justice Black wrote, in Youngstown:

The Constitution did not subject this law-making power of Congress to presidential or military supervision or control.

(Youngstown, 343 U.S. at 587-588. These secret authorization orders [for Bush's warrantless surviellance program] must, like the executive order [Youngstown], fall. They violate the Separation of Powers ordained by the very Constitution of which this President is a creature.

The Bush regime's claim that the AUMF authorizes warrantless surveillance is deeply bogus
And bogus in terms that a first-year law student should be able to understand, too:

[JUDGE TAYLOR]: The Government argues here that it was given authority by [the Authorization to Use Military Force] to conduct the [warrantless surveillance program in violation of both FISA and the Constitution. ... FISA’s history and content, detailed above, are highly specific in their requirements, and the AUMF, if construed to apply at all to intelligence is utterly general. In Morales v. TWA, Inc., 504 U.S. 374 (1992), the Supreme Court taught us that “it is a commonplace of statutory construction that the specific governs the general.” Id. at 384. The implication argued by Defendants, therefore, cannot be made by this court.

The Bush regime's claims for "inherent authority" are deeply bogus
Or, as I like to call it, "inherent weaselity":

[JUDGE TAYLOR]: The duties and powers of the Chief Executive are carefully listed, including the duty to be Commander in Chief of the Army and Navy of the United States,49 and the Presidential Oath of Office is set forth in the Constitution and requires him to swear or affirm that he “will, to the best of my ability, preserve, protect and defend the Constitution of the United States.”50 The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.

We must first note that 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. [emphasis added] We have seen in Hamdi that the Fifth Amendment of the United States Constitution is fully applicable to the Executive branch’s actions and therefore it can only follow that the First and Fourth Amendments must be applicable as well.51 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.

The criminal Bush regime is subject to the law, as interpreted by the courts
The Paula Jones case is the gift that keeps on giving (snicker). I'm so glad the wingers over-reached yet again by bringing it when they were staging their coup against Clinton:

[JUDGE TAYLOR]: 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).

Miscellaneous good news
The decision nobbles the Specter bill. Glenn Greenwald:

If Congress is not empowered to authorize this program through the AUMF (because the program is unconstitutional), then there is no good argument as to why the Specter bill can.

And kudos to that cranky old sot, Christopher Hitchens, for doing the right thing by lending his name as a plaintiff in the case. Likewise Larry Diamond, of the far-from-progressive Jedgar Hoover Institute.

What's not to like:

The decision encourages the use of the state secrets doctrine to conceal lawbreaking
From the judgment:

[JUDGE TAYLOR:] Defendants’ Motion to Dismiss the final claim of data-mining is granted, because litigation of that claim would require violation of Defendants’ state secrets privilege.

And what is the court's reasoning? I'm not nearly as sanguine as Christy about the Orwellian "state secrets" privilege. Why? Here's why Taylor rules that the state secrets privilege didn't apply to the rest of the motions in the case:

[JUDGE TAYLOR:] Plaintiffs maintain that their claims regarding the [warrantless surveillance program] are based solely on what the Defendants have publicly admitted. ... The court is persuaded that Plaintiffs are able to establish a prima facie case based solely on defendant's public admissions. ... The court, however, is convinced that Plaintiffs cannot establish a prima facie case to support their data mining claims without the use of privileged information and further litigation of this issue would force the disclosure of the very thing the privilege is designed to protect.

So, let's step back for a moment and look at the structure of incentives this reasoning sets up.

1. We already know that the Bush regime has sought to break the law with impunity, break the First and Fourth Amendments, destroy the separation of powers, and that the oath of office means nothing to them (said over a Bible or not). How do we know this? Judge Taylor told us so!

2. Presumptions that the executive will act in good faith are therefore not given (nor, under the separation of powers doctrine, should they be, nor need they be).

3. Therefore, an executive seeking to prevent litigation of its illegal behavior under the "state secrets" doctrine would, well, need to be obsessive about keeping its secrets, eh? It would need to:

4. Make no public admission at all of their illegal programs, since that is what tripped them up in this case, and

5. Ferociously suppress any possibility of leaks about their illegal programs, and

6. As a preventive measure, surveill everyone inside the Beltway--phones, email, everything--to make sure #3 and #4 are really happening.

Now, surely the administration has already taken step #4; in fact, Bush is back in the bubble even more than before--the reporters have been shoved out of the White House under the guise of repairing the press room (decor by Leni Riefenstahl), and don't even get to travel with Bush any more).

And everyone knows that the administration is taking step #5.

And if we can't prove they're doing step #6, people sure are acting like they think it's true, aren't they? (Say, what was in those intercepts Bolton got from the NSA, anyhow?) Remember the principle that these guys will always find a way to lower the bar?

So, it looks to me like if the Bush administration wants to get away with illegal acts in secret, all they have to do is... keep them secret. No loose lips, no leaks, no contact with the press, and plenty of blackmail and threats to STFU.

That's some catch.

As a result, the Bush administration is free to read my mail, record my phone calls, track my searches, and social network all of that with my blog. And you know what? Those are all my "papers and effects" under the Fourth Amendment, and I don't want them doing that.

So, love the opinion, Judge, but I could have done without this part of it.

The illegal program Bush seeks to conceal will be ratfucking
It's late, and if anybody wants to know why I think what's causing the NSA power outages is limitless expansion of computing capacity as surveillance operates on the "six degrees" principle, see here, and here, and especially here ("politically explosive").

In short, it's the data mining that I find truly frightening, since it can undermine everything gained in the rest of the judgment. And its the datamining that is now concealed by the "state secrets" privilege. We could win the battle and lose the "new kind of war" on this one.

Jeebus, it's late. I think I'll pop that champagne anyhow. Just for me.

UPDATE In Salon (heck, get the day pass) Glenn Greenwald looks at the legal reasoning in Jackson's opinion. More here and here. Not good. Everything may need to be relitigated again on appeal.

UPDATE If you grant that datamining is an instrument of informational warfare, there are interesting implications. From a post earlier this year:

The surveillance device that we’ve been discussed here is a weapon of war, and its use to monitor email is a tactic of war.  This is just common sense. Information warfare has been a part of war since the days of Sun Tzu (“knowledge of the enemy’s dispositions can only be obtained from other men.”) World War II was fought on the battlefields of information warfare when the British broke the German Enigma code, and the Americans the Japanese  equivalent, Purple. To this day, cryptographic systems are classified legally as munitions, devices of war. And administration takes the common sense position. From the DOJ’s letter to Congress, purportedly justifying Bush’s illegal warrantless surveillance system:

Communications intelligence targeted at the enemy is a fundamental incident of the use of military force.

Because communications intelligence activities constitute, to use the language of Hamdi, a fundamental incident of waging war, the AUMF clearlv and unmistakably authorizes such activities directed against the communications of our enemy.

So, what “enemy” email are they reading? It is—in the words of Reagan hagiographer Peggy Noonan—irresponsible not to speculate. My answer is: A conservative estimate is that they’re reading all email inside the Beltway. After all, everyone inside the Beltway is either a known enemy or a potential one.  (Cf. “Asking the unasked question about Bush’s illegal domestic spying.”)  This would account for the curious tendency of many players in this drama to consign important information only to paper. Examples include: Jay Rockefeller’s handwritten letter to Cheney, Judy Miller’s notebooks, and Scooter Libby’s three-ringed binders. It’s as if all the players assumed that anything electronic would be read. In addition, assuming for a moment that the administration regards the entire Democratic apparatus as an enemy, wiring the entire Beltway would seriously disrupt the “enemy’s” command and control systems. 

If this hypothesis is true—and remember, all the stories say “and email” whenever they mention surveillance—that would mean that the administration has turned devices that history, the law, and they themselves consider weapons of war against members of the press, members of Congress, and many  citizens. 

That means that this massive email surveillance program is “levying war” against the United States. What else is informational warfare but war?

And that, friends, is what the Constitution defines as treason.

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