[eDebate] Federal Court Enjoins Terrorist Surveillance Program

Stefan Bauschard SBauschard
Thu Aug 17 12:56:57 CDT 2006

More at Greenwald's Blog

The opinion is here (.pdf); the injunction order is here (.pdf).


Fifth, the court relied upon Youngstown to hold that the Executive's powers in the national security area do not entitle him to act beyond the law or the constitution, and that courts are empowered under our constitution to enjoin and restrict the exercise even of national security powers when the President's conduct violates the law or the Constitution.

Sixth, the court swiftly and dismissively rejected the administration's claim that the AUMF constitutes authorization to eavesdrop in violation of FISA, noting that FISA is an extremely specific statute while the AUMF says nothing about eavesdropping. In any event, as the court noted, since the court found warrantless eavesdropping unconstitutional, Congress could not authorize warrantless eavesdropping by statute.

Seventh, the court made its scorn quite clear for the administration's Yoo theory of executive power that, as the court put it, "there are no hereditary kings in America and no powers not created by the Constitution." Citing Youngstown again, the court made clear that even in time of war, and even with regard to the President's Commander-in-Chief powers, the President is subject to constitutional restrictions -- a proposition long unquestioned in our system of government until the Bush administration.

Finally, and really quite extraordinarily, the court (a) declared the NSA program to be in violation of FISA, the First Amendment and Fourth Amendment and (b) issued a permanent injunction enjoining the Bush administration from continuing to eavesdrop in violation of FISA.

This is not the most scholarly opinion ever. It has argumentative holes in it in several important places. But it is correct in its result and it is an enormous victory for the rule of law. It took real courage for Judge Diggs Taylor to issue this Opinion and Order -- it is hard to overstate how much courage it took. It will obviously be appealed. But as of right now, it is illegal, according to this federal court, for the Bush administration to continue to implement its "Terrorist Surveillance Program," and since it is grounded in constitutional conclusions, nothing -- such as Arlen Specter's dreaded bill -- could change that.

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