This file is best viewed in 10 point Courier New.
This is a rewrite of the original opinion, which can be found online, in pdf format, at locations including:
I have tried not to change the substance of the opinion, but I have taken out any rhetoric that was ringing but not strictly relevant.Â For instance, you will not find the line about “no kings in America.”Â My object is to let people discuss substance without being diverted by rhetoric.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION
Case No. 06-CV-10204, Hon. Anna Diggs Taylor
AMERICAN CIVIL LIBERTIES UNION; ACLU FOUNDATION; ACLU OF MICHIGAN; COUNCIL ON AMERICAN-ISLAMIC RELATIONS; CAIR MICHIGAN; GREENPEACE, INC.; NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; JAMES BAMFORD; LARRY DIAMOND; CHRISTOPHER HITCHENS; TARA MCKELVEY; and BARNETT R. RUBIN, Plaintiffs,
NATIONAL SECURITY AGENCY / CENTRAL SECURITY SERVICE; and LIEUTENANT GENERAL KEITH B. ALEXANDER, in his official capacity as head of each of those agencies, Defendants
At a White House press conference on December 19, 2005, the President of the United States described a program (the “TSP”) which intercepts, without benefit of warrant or other judicial approval, the international telephone and internet communications of numerous persons and organizations within the United States.Â However, warrants are required by the Foreign Intelligence Surveillance Act, commonly known as “FISA,” 50 U.S.C. 1801 et seq.Â The following statements, excerpted from the press conference, describe the TSP program.Â (The full transcript is available at (http://www.whitehouse.gov/news/releases/2005/12/20051219-2.html )
“THE PRESIDENT:Â . . . consistent with U.S. law and the Constitution, I authorized the interception of international communications of people with known links to al Qaeda and related terrorist organizations.Â This program is carefully reviewed approximately every 45 days to ensure it is being used properly.Â Leaders in the United States Congress have been briefed more than a dozen times on this program. . . .Â I’ve reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for so long as . . . the nation faces the continuing threat of an enemy that wants to kill American citizens.
“QÂ [W]hy did you skip the basic safeguard of asking courts for permission for these intercepts?Â THE PRESIDENT:Â . . . FISA is for long-term monitoring.Â What is needed . . . is the ability to move quickly . . . .Â [T]he legal authority is derived from the Constitution, as well as the authorization of force by the United States Congress.
“QÂ [W]hy, in the four years since 9/11, has your administration not sought to get changes in the law instead of bypassing it . . . ?Â THE PRESIDENT:Â [A]n open debate about law would say to the enemy, here is what we’re going to do. . . .
“QÂ . . . Then why not monitor those calls between Houston and L.A.? . . .Â THE PRESIDENT:Â We will, under current law, if we have to. . . .Â And that’s why there is a FISA law. . . .
“QÂ But . . . you said the FISA laws essentially don’t work because of the speed in monitoring calls overseas.Â THE PRESIDENT:Â I said we use the FISA courts to monitor calls. . . .Â I just want to make sure we’ve got all tools at our disposal.
“QÂ . . .Â Are you willing to go before members of Congress and explain this eavesdropping program?And do you support an independent investigation?Â THE PRESIDENT: . . .Â [W]e’ve explained the authorities under which I’m making our decisions, and will continue to do so. . . .Â Again, any public hearings on programs will say to the enemy, here’s what they do; adjust.Â This is a war.Â Of course we consult with Congress and have been consulting with Congress and will continue to do so.
“QÂ . . . According to FISA’s own records, it’s received nearly 19,000 requests for wiretaps or search warrants since 1979, rejected just five of them.Â It also operates in secret . . . and it can be applied retroactively.Â Given such a powerful tool . . . why did you see fit to sidetrack that process?Â THE PRESIDENT:Â . . .Â without revealing the operating details of our program . . . I’ve got the authority to do this . . .Â And we’re guarding the civil liberties by monitoring the program on a regular basis, by having the folks at NSA, the legal team, as well as the inspector general, monitor the program, and we’re briefing Congress. . . .”
The Plaintiffs challenge the legality of the TSP.Â They have submitted sworn declarations that the TSP has significantly interfered with their professional duties in ways including harming their ability to talk with sources, locate witnesses, conduct scholarship, engage in advocacy, and communicate with individuals abroad whom the Government believes to be terrorists or to be associated with terrorist organizations.Â Scholars and journalists like plaintiffs McKelvey, Diamond, and Rubin, and attorneys Hollander, Swor, Dratel, Abdrabboh, and Ayad must communicate with such individuals, but the TSP has caused such individuals to cut off communications with Plaintiffs for fear of interception.Â The Plaintiffs also incur an increased financial burden in having to travel substantial distances to meet personally with their clients and others relevant to their cases.Â The resulting inability to communicate with individuals abroad without great expense significantly cripples the Plaintiffs in their ability to report the news and represent their clients.Â The Plaintiffs could use the telephone and email to execute their professional responsibilities, if the Defendants were not conducting warrantless wiretaps.Â The TSP is substantially chilling and impairing the Plaintiffs’ constitutionally protected communications, and causing the Plaintiffs specific, direct, and irreparable harm.
As to legal theories, the Plaintiffs state that the TSP violates their free speech and associational rights under the First Amendment, their privacy rights under the Fourth Amendment, and the principle of Separation of Powers because the President exceeded his executive power in authorizing the TSP, and is conducting it in disregard of the procedures required by statute and the Constitution.
The Plaintiffs also made claims with respect to “data-mining,” but the court dismisses them, and this opinion concerns only the TSP claims.Â The Plaintiffs seek a permanent injunction, and partial summary judgment.
The Defendants acknowledge that the TSP exists as described by the President.Â They have moved to dismiss, or for summary judgment, based on arguments about state secrets, and lack of standing.
II.Â State Secrets
The state secrets privilege is an evidentiary rule developed to prevent the disclosure of information which may harm national security.
The Defendants argue that this case must be dismissed because the Plaintiffs cannot, without revealing state secrets, establish standing or a prima facie case for any claims; and even if the Plaintiffs could, the Defendants could not defend without disclosing state secrets.
The Plaintiffs argue that no facts not already in the record are necessary to prove their claims, so that the state secrets privilege is irrelevant; and that, even if the court finds that the privilege was appropriately asserted, the court should use creativity and care to devise methods to protect the privilege but let the case proceed.
The relevant line of cases begins with United States v. Reynolds, 345 U.S. 1 (1953), in which the widows of civilians who died in a B-29 crash brought suit, and sought production of the accident investigation report and statements of surviving crew members.Â To resist discovery, the Government asserted the state secrets privilege.Â Chief Justice Vinson stated: The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.Â Reynolds, 345 U.S. at 8.
* * * *Â Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.Â Id. at 11. The Court sustained the privilege because the plaintiffs had an alternative way to make their case, the secrets had no “causal connection with the accident,” and the plaintiffs could “adduce the essential facts as to causation without resort to material touching upon military secrets.”Â Id.
Many cases are in this line.
In Halkin v. Helms, 598 F.2d 1 (D.C.Cir. 1978), Vietnam War protesters challenged the legality of NSA surveillance operations including one named SHAMROCK.Â The Government asserted the state secrets privilege, but the trial court “thought congressional committees . . . had revealed so much information about operation SHAMROCK that such a disclosure would pose no threat to the NSA mission.”Â On appeal, the court was reversed, because: There is a “reasonable danger” . . . that confirmation or denial that a particular plaintiff’s communications have been acquired would disclose NSA capabilities and other valuable intelligence information to a sophisticated intelligence analyst.
In Ellsberg v. Mitchell, 709 F.2d 51 (D.C. Cir. 1983), the “Pentagon Papers” defendants and their attorneys brought suit when they discovered “that one or more of them had been the subject of warrantless electronic surveillance by the federal Government.”Â The defendants admitted two wiretaps, but otherwise asserted the state secrets privilege.Â The trial court upheld the privilege.Â On appeal, the plaintiffs won a reversal as to the claims based on the two admitted wiretaps, because there was no reason to “suspend the general rule that the burden is on those seeking an exemption from the Fourth Amendment warrant requirement to show the need for it.”Â The court said that the state secrets privilege “is not to be lightly invoked.”Â Thus, the privilege may not be used to shield any material not strictly necessary to prevent injury to national security; and, whenever possible, sensitive information must be disentangled from nonsensitive information to allow for the release of the latter.Â Ellsberg, 709 F.2d at 56.
In Kasza v. Browner, 133 F.3d 1159 (9th Cir. 1998), former employees at a classified Air Force facility filed suit alleging violations of a federal statute at the facility.Â The trial court granted summary judgment against the plaintiffs, because of the state secrets privilege.Â In affirming, the appellate court explained that when the privilege is properly invoked “evidence is completely removed from the case,” and if “the plaintiff cannot prove the prima facie elements of her claim with nonprivileged evidence, then the court may dismiss her claim;” summary judgment may be granted “if the privilege deprives the defendant of information that would otherwise give the defendant a valid defense to the claim;” and “if the ‘very subject matter of the action’ is a state secret, then the court should dismiss . . . based solely on the invocation of the state secrets privilege.”Â Kasza, 133 F.3d at 1166.
In Tenenbaum v. Simonini, 372 F.3d 776 (6th Cir. 2004), Tenenbaum alleged that the Government and various federal employees made an espionage investigation of him because he was Jewish.Â The case was dismissed because the defendants could not defend “without disclosing information protected by the state secrets doctrine.”Â The appellate court affirmed.
The War on Terror of this administration has produced a vast number of cases in which the state secrets privilege has been invoked.
In El-Masri v. Tenet, 2006 WL 1391390 (E.D. Va. 5/12/06), a German citizen brought claims based on a program called Extraordinary Rendition.Â The court dismissed the claims because of the state secrets privilege.Â The plaintiff argued that the privilege was negated because of Government admissions that Extraordinary Rendition, but this argument did not persuade the court, because it found the admissions to be without details.
In Hepting v. AT&T, 2006 WL 2038464 (E.D. Cal. 6/20/06), the plaintiffs alleged that AT&T collaborated with the NSA in warrantless surveillance which illegally tracked domestic and foreign communications and communication records of millions of Americans.Â The United States intervened and moved that the case be dismissed based on the state secrets privilege.Â The trial court examined the information that had already been exposed to the public, which is essentially what has been revealed in the instant case.Â The Government had already admitted that: it monitors “contents of 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.” Based on those admissions, the court said it could not “conclude that the existence of a certification regarding the ‘communication content’ program is a state secret.”Â Hepting, 2006 WL 2038464 at 19.
In Terkel v. AT&T, 2006 WL 2088202 (N.D. Ill. 7/25/06), the plaintiffs alleged that AT&T provided information about their telephone calls and internet communications to the National Security AgencyÂ The trial court dismissed because the state secrets privilege made it impossible for the plaintiffs to establish standing.
In the instant case, the state secrets privilege was properly invoked.Â The Defendants publicly filed affidavits with facts supporting the Government’s contention that the state secrets privilege requires dismissal; the Plaintiffs concede that the procedural requirements in Reynolds are met; and the court, after examining material submitted by the Defendants submitted, finds that the material constitutes state secrets.
However, the Plaintiffs maintain that their claims do not depend on state secrets, but are based solely on what the Defendants have publicly admitted; and in fact, the Plaintiffs are not seeking any additional discovery about their TSP claims.Â If the Plaintiffs can make their case without using state secrets, the state secrets privilege will not apply.
The Defendants do not dispute that they have publicly admitted that the TSP exists, operates without warrants, and targets communications where one party is outside the United States and the Government has a reasonable basis to conclude that one party is a member of al Qaeda, or affiliated with al Qaeda, or a member of an organization affiliated with or working in support of al Qaeda.
Based on these admissions, and on the sworn declarations provided by the Plaintiffs, the court finds that the Plaintiffs can establish a prima facie case without using state secrets.
However, the Defendants also contend that they cannot defend without exposing state secrets.Â Yet the Government has repeatedly told the public that there is a valid basis in law for the TSP.Â For instance, President Bush said the following in a radio address:Â In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations. The full transcript of the address is available at http://www.whitehouse.gov/news/releases/2005/12/20051217.html
Clearly, the Defendants can defend without exposing state secrets.
The Defendants also contend that the President has the authority, from various sources, to authorize continued use of the TSP.Â However, this defense does not require the use of classified information.Â It is disingenuous to present a defense not based on classified information, while claiming that any defense must use classified information.
To have standing to sue in federal court, an individual must show “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical”; “a causal connection between the injury and the conduct complained of;” and that “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”Â Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), 560-561.Â The requirements for organizations derive from those rules; Friends of the Earth v. Laidlaw Environmental Services, 528 U.S. 167 (2000).
The Defendants argue that the Plaintiffs do not have standing because they merely have a subjective fear of surveillance.
On “a motion for summary judgment, the plaintiff . . . must ‘set forth’ by affidavit or other evidence ‘specific facts’ . . . which for purposes of the summary judgment motion will be taken to be true,” Lujan, 504 U.S. at 561.Â Under this standard, the Plaintiffs’ sworn declarations, described in Section I above, establish standing.
The Defendants respond that the allegations present no more than a “chilling effect” based upon purely speculative fears.Â The Defendants rely heavily on Laird v. Tatum, 408 U.S. 1 (1972), in which the Supreme Court ruled that there is no standing when “a complainant [merely] alleges that the exercise of his First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity.”Â The Defendants’ argument is not responsive to the contents of the Plaintiffs’ sworn declarations.Â Laird does not apply to this case.
In fact, under the Government’s argument, no American would have standing to challenge any activity where no person is notified that he is aggrieved by a secret program which completely ignores a governing statute.
However, it must still be determined whether the Plaintiffs have shown that there is a causal connection between the injury and the conduct complained of.Â Lujan, 504 U.S. at 560-561.Â In our case, the causal connection is unequivocal:Â the Defendants admit that the TSP targets communications where one party is outside the United States and is, in the estimation of the Defendants, a member of al Qaeda or an affiliate, or an agent of al Qaeda or an affiliate.Â The injuries to the Plaintiffs can unequivocally be traced to the TSP.
Finally, it is likely that the injury will be redressed by the requested relief:Â stopping warrantless wiretapping.Â An injunction to that effect would assure the Plaintiffs that they could freely converse and correspond via email without concern that such communications were being monitored without notice.
If the court were to deny standing based on the unsubstantiated minor distinctions drawn by Defendants, then the President’s actions would be immune from judicial scrutiny, despite the “checks and balances” doctrine.Â It is the court’s duty to ensure that power is never “condense[d] … into a single branch of government.”Â Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion).Â Whenever “the President takes official action, the Court has the authority to determine whether he has acted within the law.”Â Clinton v. Jones, 520 U.S. 681, 703 (1997).Â “It remains one of the most vital functions of this Court to police with care the separation of the governing powers . . . . .”Â Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 468 (1989) (Kennedy, J., concurring).
The court denies Defendants’ motion to dismiss for lack of standing.
IV.Â The History of Electronic Surveillance in America
The search and seizure of private telephone conversations without physical trespass requires prior judicial sanction, pursuant to the Fourth Amendment.Â Searches without such approval are per se unreasonable, under the Fourth Amendment.Â Katz, 389 U.S. 347, at 357 (1967).
In 1968, Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act (18 U.S.C. 2510 et seq.) governing wire and electronic interceptions in the fight against certain major crimes.Â Title III did not apply to interceptions of international or foreign communications.Â It defined “aggrieved person” as “a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed,” required notice to such person of any interception, and gave such person standing to challenge interceptions.Â It also allowed post- interception warrants, up to 48 hours later, in emergency situations.
U.S. v. U.S. District Court, 407 U.S. 297 (1972), commonly known as “the Keith case,” held that, even in domestic security matters, the Fourth Amendment requires a warrant for electronic surveillance.
In 1976 a Congressional committee disclosed that every President since 1946 had engaged in warrantless wiretaps in the name of national security, and that there had been numerous political abuses.Â Congress responded in 1978 by enacting the Foreign Intelligence Surveillance Act (“FISA,” 50 U.S.C. 1801 et seq.), which states that it is “the exclusive means by which electronic surveillance of foreign intelligence communications may be conducted.”
FISA contains a “disclaimer” that nothing in it shall be construed to limit the constitutional power of the President to make international wiretaps.Â The Defendants rely on this disclaimer as authority for the TSP, but in the Keith case, Justice Powell wrote that “Congress simply left Presidential powers where it found them,” and that the disclaimer was not a grant of authority.Â 407 U.S. at 303.
For all of the Plaintiffs, FISA requires a warrant for interception of their international communications.Â A FISA warrant requires a finding of probable cause to believe that the target was either a foreign power or agent thereof — a lower standard than in Title III, which requires that a crime had been or would be committed.Â FISA requires warrants before interception, with some exceptions:Â fifteen days after a Congressional Declaration of War, one year on certification by the Attorney General, and seventy-two hours for other defined exigencies.Â Interceptions may be for no longer than ninety days; minimization is again required; an aggrieved person is (as in Title III) required to be notified and given the opportunity to file a motion to suppress; and alternatives to a wiretap must be found to have been exhausted or ineffective.Finally, FISA established a special court, of federal judges designated by the Chief Justice, to hear all applications, and make all orders, ex parte.Â All these terms reflect the Congressional effort to balance executive needs against privacy rights, as recommended in the Keith case.
United States v. Falvey, 540 F. Supp. 1306 (E.D.N.Y. 1982), held that FISA did not intrude on the President’s undisputed right to conduct foreign affairs, but protected citizens and resident aliens within this country, as “United States persons.”Â Id. at 1312.
FISA was later found to meet Fourth Amendment requirements constituting a reasonable balance between Governmental needs and the protected rights of our citizens.Â United States v. Cavanagh, 807 F.2d 787 (9th Cir. 1987), and United States v. Duggan,743, F.2d 59 (2d Cir. 1984).
The TSP was authorized against this background.
V.Â The Fourth Amendment
The Fourth Amendment provides: 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. The Fourth Amendment was “specifically propounded and ratified with the memory of . . . Entick v. Carrington, 95 Eng. Rep. 807 (1765) in mind”, stated Judge Wright in Zweibon v. Mitchell, 516 F.2d 594, 618 n.67 (D.C. Circ. 1975) (en banc) (plurality opinion).Â Justice Douglas, in his concurrence in the Keith case, also noted the significance of Entick: . . . it was such excesses as the use of general warrants and the writs of assistance that led to the ratification of the Fourth Amendment.Â In EntickÂ . . . [t]he Secretary of State had issued general executive warrants to his messengers authorizing them to roam about and to seize libelous material and libellants of the sovereign.Â Entick, a critic of the Crown, was the victim of one such general search . . . .Â He brought a successful damage action for trespass against the messengers.Â The verdict was sustained on appeal.Â Lord Camden wrote that if such sweeping tactics were validated, then the secret cabinets and bureaus of every subject in this kingdom will be thrown open to the search and inspection of a messenger, whenever the secretary of state shall think fit to charge, or even to suspect, a person to be the author, printer, or publisher of a seditious libel.’ . . .Â In a related and similar proceeding . . . the same judge who presided over Entick’s appeal [said] ‘(t)o enter a man’s house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition . . .’ . . .Â [Such] tyrannical invasions . . . have been recognized as the primary abuses which ensured the Warrant Clause a prominent place in our Bill of Rights.Â U.S. v. U.S. District Court, 407 U.S. at 328-329 (Douglas, J., concurring). Justice Powell, in the Keith case, wrote: Over two centuries ago, Lord Mansfield held that . . . ‘The magistrate ought to judge; and should give certain directions to the officer.’ . . .Â [This] formulation touches the very heart of the Fourth Amendment directive:Â that, where practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence . . . and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen’s private premises or conversation.Â Inherent in the concept of a warrant is its issuance by a ‘neutral and detached magistrate.’ [and the] requirement of ‘probable cause’ instructs the magistrate that baseless searches shall not proceed.Â U.S. v. U.S. District Court, 407 U.S. at 316. The Fourth Amendment was adopted to assure that executive abuses of the power to search would not continue in our new nation.
In United States v. Karo, 468 U.S. 705 (1984), Justice White wrote that a private residence is a place in which society recognizes an expectation of privacy, and that warrantless searches of such places are presumptively unreasonable, absent exigencies.Â Id. at 714-715.Â Karo is consistent with Katz, where Justice Stewart said:Â ‘Over and again this Court has emphasized that the mandate of the (Fourth) Amendment requires adherence to judicial processes,’ . . . and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well-delineated exceptions.Â Katz, 389 U.S. at 357. In the Keith case, Justice Powell stated that: The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates.Â Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. . . .Â But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks.Â The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.Â U.S. v. U.S. District Court, 407 U.S. at 317. Accordingly, the Fourth Amendment requires reasonableness in all searches, with prior warrants based on prior-existing probable cause; particularity as to persons, places, and things; and the interposition of a neutral magistrate between executive branch enforcement officers and citizens.
In enacting FISA, Congress made numerous concessions to stated executive needs:Â allowing post-interception warrants in emergencies, lowering the standard for probable cause, providing a single court of judicial experts, and extending the duration of approved wiretaps from thirty days (as in Title III) to ninety days.Â All of these concessions have been futile.Â For at least five years, the TSP has been implemented without regard to FISA, Title III, or the Fourth Amendment.
VI.Â The First Amendment
The First Amendment provides: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. The First Amendment was, like the Fourth, adopted with Entick v. Carrington in mind.
As Justice Brennan wrote for the Court in Dombrowski v. Pfister, 380 U.S. 479 (1965), subjecting organizations to repeated announcements of their subversiveness frightened off potential members and contributors, and harmed the organizations irreparably, requiring injunctive relief.Â Also, the statute at issue had a chilling effect on protected expression because, so long as it was available, the threat of prosecution for protected expression remained real and substantial.
Tapping an organization’s office phone will provide its membership roster, as forbidden by Bates v. City of Little Rock, 361 U.S. 516 (1960), thereby causing members to leave the organization, chilling its First Amendment rights.Â Zweibon, 516 F.2d at 634.
Governmental regulation of speech requires showing that a compelling governmental interest, and that the means chosen to further that interest are the least restrictive of freedom of belief and association that could be chosen.Â Clark v. Library of Congress, 750 F.2d 89, 94 (D.C. Cir. 1984).
FISA explicitly admonishes that “. . . no United States person may be considered . . . an agent of a foreign power solely upon the basis of activities protected by the First Amendment to the Constitution of the United States.”Â See also United States v. Falvey, 540 F. Supp. at 1310.
Finally, as Justice Powell wrote for the Court in the Keith case: National security cases, moreover, often reflect a convergence of First and Fourth Amendment values not present in cases of ‘ordinary’ crime.Â Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech. . . .Â History abundantly documents the tendency of Governmenthowever benevolent and benign its motivesto view with suspicion those who most fervently dispute its policies.Â Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs.Â U.S. v. U.S. District Court, 407 U.S. at 313-314.
The President of the United States has violated the Fourth Amendment in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment as well.
VII.Â Separation of Powers
The Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States” and that “executive Power shall be vested in a President of the United States of America” who “shall take care that the laws be faithfully executed . . . .”
The Constitution was drafted when the image of King George III and his General Warrants was still vivid.Â The concept of “separation of powers” was well developed.Â James Madison wrote: 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.Â THE FEDERALIST NO. 47, at 301 (James Madison).
The leading case, on which the government appears to rely, is Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952) in which Justice Black, for the court, held that an order to seize steel mills was not within the constitutional powers of the President: The founders of this Nation entrusted the law-making power to the Congress alone in both good and bad times.Â It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice.Â Such a review would but confirm our holding that this seizure order cannot stand.Â Youngstown, 343 U.S. at 589.
Justice Jackson’s concurrence is historic.Â He wrote that the powers of the President fluctuate.Â If the President acts pursuant to an express or implied authorization by Congress, his power is at its zenith.Â If he acts in the absence of Congressional action, he is in a zone of twilight.Â But when he “takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for he can rely only upon his own Constitutional powers minus any Constitutional powers of Congress over the matter.”Â Youngstown, 343 U.S. at 636-638 (Jackson, J., concurring).
In Youngstown, no congressional authorization existed for the Presidential seizure of steel mills.Â In fact, Congress had several times covered the area with statutory enactments inconsistent with the seizure. Jackson wrote that: contemporary foreign experience . . . suggests that emergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them.Â That is the safeguard that would be nullified by our adoption of the ‘inherent powers’ formula.Â Nothing in my experience convinces me that such risks are warranted by any real necessity, although such powers would, of course, be an executive convenience.Â Id. at 652. Jackson concluded that: men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.Â Youngstown, 343 U.S. at 655 (Jackson, J., concurring). Accordingly, Jackson concurred, the President had acted unlawfully.
In the instant case, the President has acted as FISA forbids.Â FISA is the expressed statutory policy of our Congress.Â The presidential power, therefore, was exercised at its lowest ebb.
In a prosecution in which production of enemy combatant witnesses had been refused by the government and the doctrine of Separation of Powers had been raised, the court noted that it: “consistently has . . . reaffirmed, the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty.”Â United States v. Moussaoui, 365 F.3d 292, 305 (4th Cir. 2004), citing Mistretta v. United States, 488 U.S. 361, 380 (1989)
Finally, Clinton v. Jones held that Article III jurisdiction of federal courts may be intrusive and burdensome to the Chief Executive, but it does not follow that “separation of powers” would be violated by allowing a lawsuit against the President to proceed.Â 520 U.S. at 701.
In our case, “separation of powers” has been violated.Â The President has violated FISA for five years.Â Justice Black wrote, in Youngstown: In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.Â The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.Â And the Constitution is neither silent nor equivocal about who make laws which the President is to execute.Â The first section of the first article says that ‘All legislative powers herein granted shall be vested in a Congress of the United States * * *’Â The Constitution did not subject this law-making power of Congress to presidential or military supervision or control.Â Youngstown, 343 U.S. at 587-588.
The present administration’s secret wiretapping orders violate the Separation of Powers ordained by the Constitution.
VIII.Â The Authorization for Use of Military Force
After 9/11, Congress jointly enacted the Authorization for Use of Military Force (“AUMF”), which states: That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
The Government argues that the AUMF gives it authority to conduct the TSP, despite both FISA and the Constitution.Â The AUMF says nothing about intelligence or surveillance, but the Government says such authority must be implied.Â The Government even claims that the AUMF has by implication authorized the TSP for more than five years, although that term far exceeds FISA’s longest exception for delays in seeking warrants.Â However, FISA and Title III are denominated by Congress as the exclusive means by which electronic surveillance may be conducted.Â Both statutes make it abundantly clear that prior warrants must be obtained court for such surveillance, with limited exceptions which the Defendants do not claim apply.
Also, FISA is highly specific in its requirements, and the AUMF, even if construed loosely to apply to intelligence, is utterly general.Â “[I]t is a commonplace of statutory construction that the specific governs the general.”Â Morales v. TWA, 504 U.S. 374, at 384 (1992).Â Therefore, the implication that the AUMF overrides FISA cannot be made by this court.
A United States citizen may be held as an enemy combatant, but is required by the Constitution to be given due process of law, including notice and the opportunity to be heard by a neutral decisionmaker.Â Hamdi v. Rumsfeld, 542 U.S. 507, at 533 (2004).Â Justice O’Connor stated: It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.
* * * * Any process in which the Executive’s factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short.Â Hamdi, 542 U.S. at 532, 537.
The Constitution must be followed, and even if the AUMF superseded all other statutes, the Defendants have violated the Constitution.
IX.Â Inherent Power
Article II of the Constitution provides that any citizen of appropriate birth, age and residency may be elected to the office of President.Â The President’s duties and powers are carefully listed, including the duty to be Commander in Chief of the Army and Navy of the United States.Â And the Oath of Office in the Constitution requires the President to swear or affirm that he “will, to the best of my ability, preserve, protect and defend the Constitution of the United States.”
Yet the Government appears to argue that, pursuant to the penumbra of the language in Article II, and because the President is designated as Commander in Chief of the Army and Navy, he has the inherent power to violate not only the laws but the First and Fourth Amendments.
We note that the Office of the Chief Executive has been created by the Constitution.Â There are no powers not created by the Constitution, so all “inherent powers” derive from that Constitution.
Hamdi holds that the Fifth Amendment is fully applicable to the Executive branch’s actions; it follows that the First and Fourth Amendments are applicable as well.Â In Youngstown, the “inherent powers” argument was raised, and the Court noted that the President had been created Commander in Chief of the military only, not of all the people, even in time of war.Â It is well settled that the “Constitution of the United States is a law for rulers and people, equally in war and in peace. . . .”Â Ex Parte Milligan, 71 U.S. 2, 120 (1866).Â In Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934), we were taught that no emergency can create power.
Finally, the Defendants suggest that FISA is unconstitutional, but this court finds that question irrelevant.Â The Constitution has been violated by the TSP.Â Whatever the statutes, the Fourth Amendment must still be satisfied.Â Falvey, 540 F. Supp. 1306 (E.D.N.Y. 1982).Â Many cases affirm the President’s vast power to obtain foreign intelligence, but none suggests that he is immune from the Constitution.Â Zweibon, 516 F.2d 594.
The “inherent powers” argument fails to justify the TSP.
X.Â Practical Justifications for Exemption
Title III and FISA both permit delayed applications for warrants, and the law has long permitted law enforcement action to proceed in cases such as “hot pursuit”, border searches, school locker searches, or emergencies.
Zweibon enumerates many of Defendants’ justifications (judicial competence, danger of security leaks, less likelihood of criminal prosecution, delay, and the burden placed upon both the courts and the Executive branch by compliance) and finds, after careful analysis, that none constitutes adequate justification for exemption from the requirements of either the statute or the Fourth Amendment.Â Zweibon, 516 F.2d at 641.
It is noteworthy that the Defendants have not asked Congress to amend FISA to remedy any practical difficulties.Â The Defendants have not been trying to overcome difficulties in the law, they have been ignoring it.
The Truman administration argued that the cumbersome procedures required to obtain warrants made the process unworkable.Â Youngstown, 343 U.S. 579 (1952), refuted that argument, and the present Defendants’ need for speed and agility is no better.Â The Supreme Court, in the Keith case and Hamdi, offered helpful solutions to the delay problem, all to no avail.Â XI.Â Conclusion
For all these reasons, this court holds that the TSP violates the Separation of Powers doctrine, the First and Fourth Amendments of the Constitution, and statutory law.
The requested permanent injunction is granted.Â Each of the factors required to sustain a permanent injunction has been met (the plaintiff has suffered an irreparable injury; remedies available at law, such as monetary damages, are inadequate to compensate for that injury; balancing the hardships between the plaintiff and defendant, a remedy in equity is warranted; and the public interest would not be disserved by a permanent injunction.)Â The irreparable injury necessary to warrant injunctive relief is clear, as the First and Fourth Amendment rights of Plaintiffs are violated by the TSP.Â The Defendants may avoid any injury by complying with our Constitution and statutory law, as amended if necessary.Â The Plaintiffs have prevailed, and the public interest is clear:Â it is the upholding of our Constitution.