This week, in a 2-1 decision, the 6th District Court ruled that the American Civil Liberties Union (ACLU) and fellow litigants did not have standing to sue the National Security Agency over the Terrorist Surveillance Program or (TSP). Under the terms of the program, President George Bush had authorized the use of warrantless wiretaps, when one end of the communications is in a foreign country. It is clear that NSA does not need a judge-issued warrant for eavesdropping on international conversations. It is also clear that if the wiretapping involves people entirely within this country, the government needs to seek a warrant. It is certainly less clear what the limits are on executive authority in this in between situation.
There had been some mixed limited opinion at the District Court level on this issue, but there was no definitive legal judgment on the matter at the Supreme Court level. This case potentially can provide an important opportunity to plumb new depths of Constitutional law on an issue that is likely to play an important role in the War on Terror for decades. Instead, District Court Judge Anna Diggs Taylor used it for polemical advantage and little legal reasoning. Taylor not only ruled that that the litigants had what many conceded was questionable standing to sue, but that the TSP violated the First Amendment (for its alleged chilling effect on communication) and the Fourth Amendment’s prohibition against unreasonable search. She then issued an immediate injunction banning the communications intercepts at issue.
One might have had a hint as to what the 6th District decision would decision ultimately be when they quickly issued a stay of the judge’s order. The case became more complex when it turned out, that Taylor served on the board of a nonprofit organization that made regular grants to the ACLU. Judge Taylor was probably not violating the law by not recusing herself from the case, but it would have improved judicial transparency and her credibility if she had addressed the issue directly.
The initial press reports on the decision focused on the number of pages in the decision as if pages are a unit of measure for clarity and wisdom. After further consideration, most have now concluded that Taylor’s decision was poorly reasoned. Even the Washington Post, that is sympathetic with the notion that the TSP exceeds Presidential authority, had to concede that the judge’s decision was “neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard hitting.”
The 6th District Court overruled Taylor in a minimalist decision. It concluded that since the litigants could not prove that any of their communications had been intercepted, they could not prove that TSP had done them any harm. The New York Times, in the third paragraph of their reporting of the 6th District Court’s decision, dutifully repeat the ACLU’s argument pointing out that the secrecy of the program it is own protection. Since, no one knows if they have been wiretapped no one could ever have standing to sue.
The Constitutional system does have a way to deal with these issues. It is through the political process and legislative representatives that these broad issues are dealt with. The 6th District Court of Appeals cited the US Supreme Court in United States v. Richardson:
“It can be argued that if respondent is not permitted to litigate this issue, no one can do so. In a very real sense, the absence of any particular individual or class to litigate these claims gives support to the argument that the subject matter is committed to the surveillance of Congress, and ultimately to the political process. Any other conclusion would mean that the Founding Fathers intended to set up something in the nature of an Athenian democracy or a New England town meeting to oversee the conduct of the National Government by means of lawsuits in federal courts. The Constitution created a representative Government with the representatives directly responsible to their constituents at stated periods of two, four, and six years; that the Constitution does not afford a judicial remedy does not, of course, completely disable the citizen who is not satisfied with the `ground rulesÂ’ established by the Congress for reporting expenditures of the Executive Branch.”
Ultimately, it is the inability to remember this that condemned Jude Taylor to yield to the temptation of using the law for partisan political ends. With this 6th District Court decision, reason and judicial temperance have now prevailed.