The Rule of Law: NSA program unconstitutional
There's a plain-spoken opinion out of the Eastern District of Michigan today.
The bottom line: There is no such thing as “inherent power” to violate the Constitution or the laws of Congress:
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.
The court sees the public interest here — to uphold the Constitution — and has granted plaintiffs an injunction stopping the wiretap program.
A set of plaintiffs had the courage, led by the ACLU, to challenge the Bush Administration's warrantless wiretapping program. A federal judge has had the courage to find that the “state secrets privilege” doesn't knock the case out, that plaintiffs have suffered concrete enough injury to allow them to have standing to sue, and that the National Security Agency has acted in contravention of FISA and the Constitution.
The opinion is squarely and simply written, and careful in its exegesis of “state secret” and standing cases.
This Administration has successfully used the “state secrets privilege” in several cases during our never-ending War on Terror. Their claim is that they can't defend this case without revealing state secrets. Courts have very frequently allowed this privilege to result in having entire cases thrown out.
In this matter, however, plaintiffs are using only evidence that the Administration has stated publicly — that for the last five years (1) the President has authorized (and reauthorized) a wiretapping program that (2) operates without warrants, and (3) “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.”
This can't be secret — the Administration keeps confirming the existence of this program publicly, almost defiantly.
Although the plaintiffs can't establish their data-mining claims without the use of secret information, the court found that they can certainly establish their case questioning the legality of the wiretap program. And the defendants, our government, has arguments about the legality of the program that don't rely on secrets (but do rely on incorrect legal arguments).
The next big hurdle for the plaintiffs was standing — their ability to show that they've suffered injury that is concrete and particularized and results from what the defendants did. This could have been tricky — because no one knows who has been surveilled or how that information is being used.
But the court deals with this easily, because among the plaintiffs are lawyers whose foreign clients will no longer speak to them on the telephone or online for fear of wiretapping — and so the lawyers have to travel. Expensive, particularized, and concrete injury. There are also scholars and journalists in the group who have been unable to communicate because of these same fears, and must travel to conduct research and interviews.
More fundamentally, the court sees beyond the formal standing requirements to this essential point:
Although this court is persuaded that Plaintiffs have alleged sufficient injury to establish standing, it is important to note that if the court were to deny standing based on the unsubstantiated minor distinctions drawn by Defendants, 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.
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.
This court believes it has a real case or controversy before it. Denying standing would render the plaintiffs' claims unreviewable and unreviewed.
The strongest part of the decision, and the call to remind all of us why the rule of law matters, comes near the end. FISA was set up to balance executive needs against the privacy rights of United States persons. We've established many special procedures to make it easy for the executive to get approval for wiretaps. To ignore this statute is to ignore Congress — and that's not allowed.
The wiretapping program here in litigation has undisputedly beeen 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.
Here, the President has ignored statutory instruction — and so his powers are at their lowest ebb. The Authorization for Use of Military Force on which the Administration relied said nothing about wiretapping.
This may be too plain and workmanlike an opinion to survive the intellectual legerdemain of the best hired-gun appellate lawyer — but it's right. It's a good day for the rule of law.
Vacation work — Stevens bill cont.
Today, some juicy and strange legislative provisions in the draft Stevens bill.
“Misleading words or images on the Internet.” That's how the section that begins on p.226 starts. It's a mighty big subject — but we do have a focus, and acts defying this language will trigger fines and imprisonment:
It is unlawful for any person knowingly to embed words, symbols, or digital images into the source code of a website with the intent [to deceive another person into viewing material that is obscene] [to deceive a minor into viewing material that is harmful to minors].
I'm guessing this is a repeat of the old meta-tag worries — “secret” codes designed to fool search engines into listing a site, much to the horror of the inadvertently clicking consumer. This seems to be a legislative solution in search of a problem. First of all, many search engines rank according to linkage, not according to those ol' secret codes. And the engines will give a few lines of text — which won't be in the source code for a site but will instead be visible. So what's the problem?
The “harmful to minors” definition is interesting — it attempts to create a nationwide “community standard” for this material:
[Harmful to minors material is material that] is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors
COPA targeted speech that was harmful to minors according to “contemporary community standards.” The government argued that that standard wasn't problematic online because most places in America have the same standard. In the summer 2002 Supreme Court decision, Justice Thomas said that a web publisher had the burden of compliance with the most restrictive jurisdiction into which material was sent. Justice Breyer didn't agree:
“To read the statute as adopting the community standards of every locality in the United States would provide the most puritan of communities with a heckler's Internet veto affecting the rest of the nation. . . The technical difficulties associated with efforts to confine Internet material to particular geographic areas make the problem particularly serious.”
Justice O'Connor also agreed in COPA that the use of “community standards” might be problematic online.
Faced with the oddness of the Thomas position and the concerns raised by Breyer and O'Connor, the drafters of this Stevens bill decided to throw “communities” overboard completely. The government must be assuming that “prevailing standards of the adult community as a whole” are obvious enough to avoid an overbreadth challenge. It's easy to predict that there will be substantial and well-grounded complaints about this language. I don't think the people in my neighborhood (Greenwich Village) have the same standards for what is “harmful to minors” as everyone else, and I don't think there's a “prevailing standard” nationwide. Who prevails? What on earth does that mean?
The next section prevents children's programming from presenting interactive commercial matter. I know that children are big marketing targets, but why not let them interact with the cereal? How can that hurt? If parents don't like the programming, can't they just turn it off? (ducking)
The last bit suggests a study of “bus-casting” — broadcasting on school buses. Now, I'm against being forced to watch anything — on planes or buses or in taxis. So I'm all for looking closely at this. But I still wouldn't mind interacting with the cereal (or licensed character) if I were six. Heck, children are exposed to so much media they'll be totally jaded — they won't care if the licensed character can wave to them. Stifling interactivity is likely to have negative economic effects on this programming — look what COPPA did to children's web sites.
Tomorrow: the vaunted Internet Consumer Bill of Rights.