Jack Balkin on the Eavesdropping Opinion:

Much worth reading, here. Key excerpts (some paragraph breaks added):

Although the court reaches the right result -- that the program is illegal, much of the opinion is disappointing, and I would even suggest, a bit confused. The first amendment holding is novel although plausible, but it is not supported by very good arguments. The basic idea is that when the government spys on its citizens, they are likely to avoid making controversial statements or join controversial organizations. Fair enough. But the problem is that the program was secret. It was the disclosure of the program that created the chilling effect. And even if we put that problem to one side, it is not clear whether a program that is otherwise legal under the Fourth Amendment and federal law ipso facto violates the First Amendment simply because people are chilled by its existence.

Second, the court does not really deal with a number of very good arguments for why the NSA program might be within the Fourth Amendment. The best argument for the court's position is that if the program reaches United States persons who are not agents of a foreign power, like the plaintiffs, it may be unconstitutional. But the court does not make that distinction.

Finally, the court seems to be very weak in its reasoning about the separation of powers. It does not even cite the recent Hamdan decision, which is probably the most relevant decision, resting its arguments primarily on the 2004 Hamdi decision. It also seems confused about what constitutes a violation of separation of powers. If the AUMF did in fact amend FISA, the government has a very strong argument that it falls into category one -- maximum executive power -- and not category three -- minimum executive power -- under the Youngstown analysis. The court does not seem to deal with the best version of the government's arguments. I think those arguments fail, for reasons that Marty and I, among others, have elaborated. But I must say that the court's analysis is not very strong. It depends heavily on the fact that the President has violated the First and Fourth Amendments, which, I think, are the weakest arguments against the program.

If those arguments go away, the separation of powers argument it offers is not very good, although in fact there are very good arguments for why the program does in fact violate the separation of powers, as well as FISA itself. The fact that the court does not bother to meet the government's claim that FISA is unconstitutional is also quite unwise, in my view. Indeed, I'm mystified by the court's refusal to draw on well publicized debates over the legality of the program between Justice Department officials and legal academics and commentators that reheases the best arguments pro and con, or, for that matter, the reasoning of the Supreme Court's Hamdan decision, handed down this June, which is, in my estimation, precisely on point.

Tyrone Slothrop (mail) (www):

Isn't this why God invented appellate courts?
8.17.2006 4:49pm
srg (mail):
What about the question of standing? Are there grounds for the decision to be overturned here?
8.17.2006 5:11pm
I suspect the reason for the weakness of the opinion is the government's invocation of the State Secrets rule. In order to allow the case to go forward at all, the judge had to rule that the plaintiff's case could be made adequately with the information available publicly and that the government no secret information was necessary for the government's defense.

Invoking the FISA law, which would have been the stronger argument, might have opened up a reasonable argument that the government would need to release proceedings of the FISA court or other detailed information about the suspects they were monitoring to make a defense that they were following FISA.

Arguing on purely constitutional grounds avoid that.
8.17.2006 5:34pm
Eh Nonymous (mail) (www):
Super: I'm confused by your suggested explanation. The government has essentially conceded all the material facts necessary to find violations of the 1st, 4th, and possibly other amendments (take your pick) and also separation of powers, etc. etc. Why would we need more information to either attack or defend it?

The government has conceded they failed to follow FISA. Why would they need to disclose secret information? They did not seek to have the law changed. They violated it.

Now, there's an arguable security reason to keep a book on the laws (telegraphing a certain level of law-complyingness) and then doing something else. It's sneaky.

But, it's also unconstitutional, in this particular case. Or at least illegal.
8.17.2006 6:01pm
Howard Gilbert (mail):
"To avoid revealing details about the operation of the program, it is assumed for purposes of this paper that the activities described by the President constitute “electronic surveillance,” as defined by FISA, 50 U.S.C. § 1801(f)." DOJ White Paper Jan 19,2006. The government has never conceded that they failed to follow FISA. They have refused to comment on, confirm, or deny anything about the activity itself. For the purpose of argument, they have taken the legal position that the program would be legal if the activity fell under FISA, but that is not a stipulation as to the facts as would be required for the court to rely on it in forming the decision.
In the real world, although the administration might want to argue that FISA didn't constrain them, there is no reason to believe that the long serving, non-partisan employees of the NSA would have used illegal means to accomplish a task where there were dozens of other perfectly legal ways to get the same results. There is no way to prove that NSA didn't violate FISA, but there is no reason to assume that they did based on the little we actually know about the program.
8.17.2006 6:39pm
Just an Observer:
Howard Gilbert,

We're a little beyond the "white paper" now. That was basically a 42-page press release, not a legal brief.

What matters now is what the administration actually showed up and said in a real court.

I know that the plaintiffs relied in part on public statements made by DOJ officials, such as the attorney general. Right out of the chute last December, at the White House, he said the NSA program involves surveillance that is within the scope of FISA. He merely argued that DOJ's legal theories one way or another rendered it all lawful.

Whatever theories the government actually articulated to Judge Taylor, she rejected them.
8.17.2006 7:35pm
Matt Janovic (mail) (www):
"But the problem is that the program was secret. It was the disclosure of the program that created the chilling effect. And even if we put that problem to one side, it is not clear whether a program that is otherwise legal under the Fourth Amendment and federal law ipso facto violates the First Amendment simply because people are chilled by its existence."

"America will never seek a permission slip to defend the security of our country" —- State of the Union Address (1/20/04)

Yep, making it a purely-constitutional decision keeps the Bush administration from muddying the issue with diversions, she's a smart judge. Most Americans over-30 know-of or suspect that there has been ongoing domestic-surveillance in this country for decades, even before the Cold War. Well, the President himself, and a bipartisan-push in 2001 in Congress were VERY vocal about doing "roving-wiretaps." This was proposed in most of the anti-terror legislation at that time, as Roberto Lovato of Pacific News Service wrote in October 22nd, 2001:

Under current proposals for "roving wiretaps," for example, all of the phones and computers on a college campus could be wiretapped or subjected to electronic surveillance if one student is labeled a terrorist for, say, opposing U.S. policy in the same way Central America peace activists and others have done.

There are numerous other stories from the time on the desire of a number in Congress to achieve this, even with the Patriot Act I. Keep-in-mind, the above-quote connotates a wide-net, he's just mentioning a hypothetical. So, Congress and the Bush administration were throwing the idea around very-vocally. Was there a secret-agreement? The argument of national-security just doesn't wash—you could hide virtually any crime under that excuse, as Nixon tried. The contention that a secret, illegal wiretapping-program is exempt from the 4th Amendment is silly, however, even if it's phone-records of who you called. If there is no-warrant, no-dice. Anyone know of Bush-quotes from the immediate post-9/11 period where he talks-about doing roving-wiretaps? I seem to remember some.
8.17.2006 7:46pm
The decision does have one highlight, it basically makes the adminstrations AUMF case for it.

"it 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."

Now if that doesn't precisly define those whom Congress declared war on in AUMF, then I don't know what does. And if Congress in somehow in AUMF authorized dropping daisy cutters on them but not intercepting their communications (where ever they may lead) then that is such a tortured definition of a declaration of war that it is almost meaningless (except for the daisy cutter part).

If the NSA would merely announce that it was intercepting Al Qaida phone calls to the US in an attempt to prove that Bush and Cheney were accomplices in the plot then the good judge would immediately reverse herself and conclude the NSA program was legal.
8.17.2006 8:24pm