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The Fourth Amendment and the NSA Domestic Surveillance Opinion:
I've just read through the Fourth Amendment part of Judge Taylor's opinion on the NSA domestic wiretapping opinion, and, well, um, it's kind of hard to know what to make of it. There really isn't any analysis; rather, it's just a few pages of general ruminations about the Fourth Amendment (much of it incomplete and some of it simply incorrect) followed by the statement in passing that the program is "obviously" in violation of the Fourth Amendment.

  Here's the part that comes closest to being an analysis section:
  [The Fourth Amendment requires] reasonableness in all searches. It also requires prior warrants for any reasonable search, based upon prior-existing probable cause, as well as 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. They include delaying the applications for warrants until after surveillance has begun for several types of exigencies, reducing the probable cause requirement to a less stringent standard, provision of a single court of judicial experts, and extension of the duration of approved wiretaps from thirty days (under Title III) to a ninety day term.
  All of the above Congressional concessions to Executive need and to the exigencies of our present situation as a people, however, have been futile. The wiretapping program here in litigation has undisputedly been 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.
  The President of the United States is himself created by that same Constitution.
  I confess that this has me scratching my head. Let's take it bit by bit:
[The Fourth Amendment requires] reasonableness in all searches. It also requires prior warrants for any reasonable search, based upon prior-existing probable cause, as well as particularity as to persons, places, and things, and the interposition of a neutral magistrate between Executive branch enforcement officers and citizens.
  It's true that the Fourth Amendment requires reasonable searches. But Fourth Amendment reasonableness is satisfied by a warrant or an exception to the warrant requirement, and there are several possible exceptions to the warrant requirement that may apply. Whether and how they may or may not apply depends on the facts of the surveillance, which are currently unknown.

  Also, identifying a reasonable expectation of privacy in communications is really quite complicated given new communications technologies; for example, courts have held that there is no REP in transactional information and cordless phone calls, and individuals with no voluntary contact with the U.S. presumably have no Fourth Amendment rights at all. We'd need to know the details of the surveillance to know this, but we don't know those details.
In enacting FISA, Congress made numerous concessions to stated executive needs. They include delaying the applications for warrants until after surveillance has begun for several types of exigencies, reducing the probable cause requirement to a less stringent standard, provision of a single court of judicial experts, and extension of the duration of approved wiretaps from thirty days (under Title III) to a ninety day term.

All of the above Congressional concessions to Executive need and to the exigencies of our present situation as a people, however, have been futile.
  What does this have to do with whether the program violates the Fourth Amendment?
The wiretapping program here in litigation has undisputedly been 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.

The President of the United States is himself created by that same Constitution.
  It's hardly obvious that the program — or some aspect of it — violates the Fourth Amendment; that's the issue before the court, and my sense is that we really don't know enough to answer it without knowing the facts. And while it's true that the office of the Presidency was created by the Constitution, and the Fourth Amendment is a part of that Constitution, it's not clear how this relates to the Fourth Amendment issue. (Oh, and on an exceedingly minor point, I think that's four years, not five.)

  I can come up with explanations for why a district court judge inclined to rule against the program would put out an opinion that isn't quite ready for prime time. For example, Senator Specter's bill would take these issues away from the district court, so the choice might be to speak now or never. But at least based on the court's Fourth Amendment analysis, I suspect this opinion is important more for its political impact and its triggering of appellate review than for any analysis in the opinion itself.

  In any event, on to the Sixth Circuit (which, at least this story suggests, may have issued a stay of the injunction already).
Anderson (mail) (www):
I suspect this opinion is important more for its political impact and its triggering of appellate review than for any analysis in the opinion itself.

The only defense I can make of the judge is that the above would likely have been the case anyway.

Oh, and "right result, wrong reasons." "Obviously"!
8.17.2006 8:01pm
Jim Tyre:
The 6th Circuit has not issued a stay. Pending a hearing on September 7, ACLU and the government have agreed to a temporary stay.
8.17.2006 8:07pm
Anonymous Liberal (mail) (www):
I had the same reaction when I read the opinion. Where's the analysis? The state secrets and standing part is reasonably substantive, but the rest is a bunch of odd quotes followed by conclusory statements. You would think that, knowing how much scrutiny this opinion would receive, the judge and her clerks would have put in a little more effort. All they had to do was track the argument contained in the letters submitted to the DOJ by Marty Lederman and company. Strange.
8.17.2006 8:11pm
Crank (mail) (www):
we really don't know enough to answer it without knowing the facts.

This is the core of my problem with the judge's state secrets analysis - she says there's no issue of secrets because the barest-bones facts are public and the plaintiffs say that on those facts they win. But a detailed review of the facts could yield a very different answer - and to admit that would be to admit that she's wrong on the state secrets point. So she just pretends that the analysis is "obvious" to avoid getting into facts she doesn't know and can't subject to discovery.
8.17.2006 8:14pm
Medis:
I agree the Fourth Amendment argument is sketchy at best. But to me it reads something like a "negligence per se" argument: the statute regulates what is "reasonable" in this area, and since the "harm" sought to be avoided by the statute was Executive Branch surveillance without neutral judicial approval, the Executive Branch's violations of FISA are per se unreasonable.
8.17.2006 8:37pm
Medis:
Crank,

But she did review additional classified material provided by the government in camera, and apparently wasn't persuaded that they added anything to the government's legal arguments. Specifically, she wrote: "Indeed, the court has reviewed the classified information and is of the opinion that this information is not necessary to any viable defense to the TSP."
8.17.2006 8:44pm
John Jenkins (mail):
Medis, that doesn't follow. If the surveillance program unconstitutional, the fact that FISA prohibits the surveillance program is irrelevant. FISA would only matter if the surveillance program were otherwise constitutional. The judge wouldn't need any FISA analysis if the underlying program were unconstitutional.

The judge could do the analysis under FISA by saying, look (1) FISA is constitutional and (2) this violates FISA, so the surveillance program is impermissible.

That doesn't seem to be what's happening here, though. It looks like the judge is conflating analysis or (more likely) is just not writing good analysis.
8.17.2006 8:44pm
Just an Observer:
Since I have never been persuaded myself that the Fourth Amendment has been directly violated by this surveillance, but I do think FISA has been, I am not betting the farm that Judge Taylor's theory on the Fourth will prevail on appeal. (Presumably, the ACLU lawyers might brief this better than the judge did.) I honestly haven't paid much attention to the ACLU's First Amendment theory.

I also have thought the procedural barriers -- standing and state-secrets privilege -- are the biggest threat to the plaintifs overall. If the courts ever reach the statutory merits, the administration's goose is probably cooked regardless of the Fourth.

Given that, I am trying to figure out how strong the judge's theory on standing is. To some extent, it seems to depend on the First Amendment "chill" theory. If that theory falls, does standing fall with it?

Also, since the trial judge has reviewed some government material in camera and still rejected the claim of state-secrets privilege, will the government's presumed renewal of that claim be weakened on appeal because there has been fact-finding at the trial-court level?
8.17.2006 9:10pm
tomjedrz (mail):
I think this decision is stupid, and it certainly appears that the judge made the decision politically and then tried to cover it in the opinion.

However, Orin wrote ...

... individuals with no voluntary contact with the U.S. presumably have no Fourth Amendment rights at all.


I would not presume that at all. IANAL, but I fail to see how the Constitution or Bill of Rights give the government more leeway to search/monitor/etc. foreign nationals overseas than citizens, residents or visitors to the US. Our rights are inherent, and not granted to us by virtue of where we happened to be born. The determination about whether a search, or this program, is constitutionally permissable seems to me to have little or nothing to do with the nationality or citizenship of either end of the phone call. Now there may be other laws at play that treat foreign and domestic people and actions differently, but the Constitution doesn't, at least as far as this engineer can tell.

All else being equal, the US government is required to respect the life, liberty and property of a foreigner just as much as it is required to respect the life, liberty and property of a citizen.

Am I missing something?

OK Comments: Yes, you are missing United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), in which the Supreme Court rejected your approach.
8.17.2006 9:20pm
Medis:
John,

The argument would work basically like this:

(1) Unreasonable surveillance is unconstitutional.

(2) FISA defines what surveillance is reasonable.

(3) Therefore, surveillance which violates FISA is unreasonable.

(4) Therefore, surveillance which violates FISA is unconstitutional.

Again, this is basically the same logic behind the tort doctrine of "negligence per se"--according to that doctrine, a violation of a regulatory statute can be per se negligent, and the factfinder need not engage into a separate inquiry into whether the violation was reasonable. It is also basically a deference principle--the factfinder defers to the legislature's judgment as to what is reasonable as embodied by the relevant statute.

So, what makes the surveillance unconstitutional is the Fourth Amendment (that's where proposition (1) came from). But FISA could be relevant insofar it defines what is reasonable, because unreasonable surveillance is barred by the Fourth Amendment.
8.17.2006 9:23pm
ajftoo:
tomjedrz,

The first seven words of the U.S. Constitution (note the name of the document!) are:

We the People of the United States...

So, yeah you're missing quite a bit.
8.17.2006 10:11pm
Medis:
ajftoo,

Yeah, but among other things, "we the people" are trying to "establish justice", and one might think that applies to anything the government of "we the people" might do, whether or not it directly impacts "we the people".
8.17.2006 10:16pm
Brian G (mail) (www):
This is Karl Rove at his best, to get a decision this ridiculous out in time for the elections. I'll be he ghost-wrote it.
8.17.2006 10:25pm
Phutatorius (www):
Orin:

You've linked to the order, not the decision. Dunno if you want to update the post, but here's the decision link.
8.17.2006 10:31pm
ajftoo:
Medis,

Well, one might think all sorts of things, doesn't make it so.
8.18.2006 12:05am
c.f.w. (mail):
I like the idea of limiting the President to the powers granted by the Constitution, and the implicit rejection of the idea of inherent power to go beyond FISA. That does not strike me as inconsistent with original "checks and balances" intent.

Lack of detailed discussion of the facts does not offend me, even as it relates to REP, territoriality, etc., since the Government has said we cannot put the facts on the public record.

Orin is perhaps too full of himself to recognize a gem, and an important reaffirmation of the relevance of the judiciary.
8.18.2006 12:21am
Medis:
ajftoo,

You mean "establish justice" isn't in the Preamble!?!

Damn you Schoolhouse Rock!
8.18.2006 1:00am
Kazinski:
Medis,
Are you seriously stating that you think Congress can define by statute what constitutes a 'reasonable search' under the 4th amendment? There are quite a few places where the constitution expresses a general concept and then devolves the responsibility to Congress to promulgate the details. But I was not aware that it was any sort of doctrine of the left that any of the bill of rights could be modified by Congress or the legislatures (except the 2nd amd. of course). Under that theory Congress could ban flag burning as non-speech.
8.18.2006 1:00am
Medis:
Kazinski,

As an aside--who said I was on the "left"?

Anyway, I was trying to understand what Judge Taylor's argument might be, not necessarily endorsing it.

But personally, I would note that Congress is in fact already involved in Fourth Amendment matters simply by providing for warrant procedures in Title 18. As you note, though, the degree to which they could otherwise define "reasonable" for Fourth Amendment purposes would be tricky at best, considering that they are presumably subject to the Fourth Amendment as well. In fact, one could probably cite Dickerson for the proposition that Congress cannot trump the courts when it comes to determining the constitutionality of criminal procedures (which undoubtedly would miff quite a few people on the "right", seeing as how Dickerson is not exactly a favorite of theirs).

But I don't think it would be crazy to assert that a court should at least consider what criminal procedures Congress has deemed reasonable and unreasonable. Indeed, properly characterized this may not even be deference per se--the idea could merely be that if Congress has provided at least one reasonable way for the Executive Branch to conduct surveillance, it renders all other ways less reasonable precisely because they are not similarly authorized and regulated by law.

And that wouldn't really be letting Congress define "reasonable" under the Fourth Amendment, insofar as this way would in fact have to be "reasonable" within the meaning given by the courts. But it would give due recognition to the fact that congressional authorization and regulation can serve a purpose, and thus that once such statutes are in place, bypassing that statutory scheme can become unreasonable.
8.18.2006 1:34am
OrinKerr:
tomjedrz,

Yes, you are missing United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), in which the Supreme Court rejected your approach.

Orin
8.18.2006 1:49am
Medis:
Although to be fair to tomjedrz, the Court in Verdugo-Urquidez distinguished the Fourth Amendment from the Fifth and Sixth Amendments. So he is not necessarily wrong about the life, liberty, and property part.
8.18.2006 1:57am
Californio (mail):
Naturally, the U.S Constitution applies to every human on earth. Indeed, it controls. Therefore I shall bring an injunction to halt in-country violations by the Sudanese against one another in , Sudan. Sadly, we must designate an Army Division as being not soldiers, but U.S. Marshals. Comrades! Let nothing stop the relentless march of progressive application of U.S. law to foreign shores![heh heh].
8.18.2006 4:00am
Bruce Hayden (mail) (www):
I think that one problem with using FISA to determine reasonable expectation of privacy is that is essentially modifying the Constitution via statute, and, yes, we are talking a floor here, but what keeps us next time from talking about a ceiling?

And, then, what happens in a couple of weeks/months, if the proposed FISA updates pass Congress and become law? Are we back to where we were with expectations of privacy? Or do the old FISA based expectations survive?

As you can probably tell, I am disquited about the ability of Congress to set Constitutional standards.
8.18.2006 11:44am
NAL (mail):

... 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.


I will be interested to see if a higher court addresses this Catch 22.
8.18.2006 11:54am
Medis:
Bruce,

More precisely, the existence of statutory procedures for conducting surveillance could render surveillance which violates those procedures unreasonable. That sort of argument would deal with your floor-ceiling issue, because the statute would not actually deinfe "reasonable", and therefore could not define itself as reasonable.
8.18.2006 12:23pm
tomjedrz (mail):
I asked a question. ajftoo condescended. Orin and others answered me clearly.

In his answer, Orin said ...

Yes, you are missing United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), in which the Supreme Court rejected your approach.


Thanks for the information; it is clear and on point. The fourth amendment doesn't apply in the case we were discussing.

I don't like this decision. In many ways it is the same kind of "justify the outcome I want" as the nonsensical decision that started this discussion. I think it goes too far. The court could have allowed the search without eliminating the governments burden to respect ALL people's rights.

The Constitution primarily constrains the US Government. Clearly, when acting outside of the boundaries of the country, the rules are going to be different, but in my view the principles and guidelines, including due process protection before searches and seizures, should still apply. In that case, the US authorities went to the Mexican authorities, which in my view satisfies said due process requirement.

I still fail to see how an unalienable right, endowed to all men by the Creator, ends at the US borders.
8.18.2006 2:20pm
Hamilton Lovecraft (mail):
It's true that the Fourth Amendment requires reasonable searches. But Fourth Amendment reasonableness is satisfied by a warrant or an exception to the warrant requirement, and there are several possible exceptions to the warrant requirement that may apply.

I don't think that's a reasonable reading of the Fourth.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"

Vague principle, saying that searches have to be "reasonable".

"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."

AND searches have to have a warrant.

I don't read that as "a warrant makes a search reasonable", but that both reasonableness and a warrant are required.
8.18.2006 3:25pm
archangel1054 (mail) (www):
I am a bit unsure of your argument in this case. I read your previous article concerning the District's use of the first amendment to strike down the wire tapping. I personally believe the first amendment has no place in a case such as this. The first amendment was never intended to protect someone's right to talk on a phone, through a letter or anything else. But all that is for a separate argument and the fact stands the Judge should never have mentioned it.

The President of the United States is required to faithfully uphold the Constitution of the United States; the fourth amendmnet is a part of the Constitution. I believe this is how the Judge intended to use her connection between the two. The fourth amendment requires a warrant to be issued by a member of the judicial branch of the government; President Bush has admitted to the fact he had no warrant to go forth with wire taps.

Based entirely on the fact the President issued the order to preform wire taps is the central issue in this case. In order to understand how the fourth amendment is violated by this we must look to the era that wrote the amendment.

"That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and out not to be granted."- Virginia Declaration of Rights, sec 10 12 June 1176.

"Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his house, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrnt to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied without a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws."- Massachusetts Constitution of 1780 pt 1. art 14.

In the 18th century papers could very well mean correspondence between two persons. As times have progressed it is only reasonable to include telephones and email to the understanding of papers. Regardless of the state of affairs our country happens to be in, the President cannot bypass amendments he doesn't like. The first ten amendments are rights granted to the people that cannot be infringed upon in any circumstance unless the people permit it.

The Judge's argument was flawed; she neglected to make key points. The very fact the President ordered the taping of phones, without judicial consent, is the matter at hand in my opinion. There is no doubt that the very fact these searches are warrantless violate the original understanding of the fourth amendment.
8.18.2006 7:05pm
Olustee (mail):
The judge is indisputably semi-literate. I don't say that she is "undisputedly" semi-literate, because there is no such word. What she may have intended is something like "indisputedly," which doesn't exist either. What she may have meant, on the other hand, is that the points she holds to be "indisputed" are in fact "not disputed," which (in another direction) isn't true either, since the DOJ disputes them.

Given the weight which this nonce adverb carries in her argument (novice fiction writers are often admonished to write all the adverbs in an early draft, then delete them) I would, though no lawyer, be inclined to argue that her argument falls down on internal grounds. That is, if she wants to ground the force of her argument on the palpably untrue contention that is "undisputed" when it demonstrably is not, is this not tantamount to making a false claim, and as such calls for a dismissal of her opinion on those grounds alone? If a judge writes an opinion that depends for its credibility on the notion that the world is flat, cannot one argue that all other pros-and-cons re: the argument yield to the conclusion that the opinion has no real-world referent?
8.19.2006 11:30am
Phil W (mail) (www):
In Hamdan v. Rumsfeld, minority and majority opinions agreed that the Authorization to Use Military Force triggered the President's war powers, which means we are at a state of war with al Qaeda.

Here in ACLU v NSA, the plaintiffs, in order to demonstrate that they had standing to sue, were forced to specify individuals they contacted regularly who were suspected members of al Qaeda, and who would not talk on the phone for fear of surveillance.

What Judge Taylor decided, then, is that the 4th Amendment guarantees citizens privacy SPECIFICALLY when contacting the enemy overseas in a time of war.

It doesn't pass the smell test. I don't care how huffy or righteous your defense of the 4th Amendment, you cannot convince me that the Founders and Authors of the Constitution intended that citizens have an absolute right to privacy while contacting an enemy during a time of war.

Quite the contrary: I would hope that any person committing such an act, no matter how necessary for their job, would reasonably expect every word of such a conversation to be heard, recorded, amplified, duplicated, transcripted, folded, spindled, and mutilated.

I'll leave the legal reasoning to lawyers; I simply point out that the result of what "reasoning" Judge Taylor employed, is a result that is so obviously wrong that we should expect the reasoning to contain whopping errors -- like those proofs you see on the Internet that 2+2=7, or that horses have an infinite number of legs.
8.20.2006 8:19pm
Medis:
Phil,

You need to be more careful. By the government's own description, the target doesn't have to be suspected of being a member of AQ, but can merely be suspected of being "affiliated" with AQ. Further, there is a difference between being suspected of something and that something being true.

So, it trivializes the issue to say the plaintiffs are contacting "enemies", because the people in question may merely be suspected of being affiliated with "enemies".
8.21.2006 1:49pm