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Shayana Kadidal Headshot

NSA Program Ruled Illegal, Unconstitutional

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The ACLU scored a huge win today in their challenge to the NSA program in Detroit. My organization, the Center for Constitutional Rights, and the ACLU filed simultaneous challenges to the NSA Program on January 17 this year, and despite the best efforts of the government to delay the resolution of the cases, Judge Anna Diggs Taylor in Detroit held oral arguments in June and July and issued her opinion today, holding the NSA Program illegal and unconstitutional and ordering that the administration put a halt to it.

No one who has read our previous columns on the NSA case should be surprised that Judge Taylor ruled that the Program violated the FISA statute, set forth by Congress in the wake of Watergate to ensure that judges had a role in all foreign intelligence surveillance. But she also ruled -- as we have argued in our case - that the Program is "obviously in violation of the fourth amendment" and "has violated the first amendment rights of these plaintiffs as well." One hopes this will put a halt to the various Congressional attempts to whitewash the program by passing a statute purporting to legalize it, since Congress can't rubber-stamp a program that violates the Constitution.

The government had argued that plaintiffs lacked standing to challenge the program because they could not know for certain that they were targets of the (secret) surveillance. However, Judge Taylor rejected those arguments, placing special importance on the hardship that the program posed for lawyer plaintiffs with overseas clients and the potential damage to the attorney-client relationship. (That's very encouraging for our case, where all our plaintiffs are CCR attorneys and legal staff who routinely communicate with people overseas accused of some link -- no matter how attenuated or unsubstantiated -- with terrorism.)

The government had also argued that the case should be dismissed because allowing the litigation to go forward risked disclosure of state secrets. Even though the plaintiffs had not requested that the court order the government to disclose any additional information about the program, the government claimed that they could not defend the case without bringing in new, secret material. Judge Taylor rejected these arguments: "the court has reviewed the classified information [the government had submitted for her eyes only] and is of the opinion that this information is not necessary to any viable defense to the TSP. ... Consequently, the court finds Defendants' argument that they cannot defend this case without the use of classified information to be disingenuous and without merit."

Judge Taylor did dismiss the data-mining claims the ACLU made - claims relating to non-targeted surveillance which the media had reported on widely, but which the administration had remained mum about - on state secrets privilege grounds, showing that it was not the existence of the privilege that she questioned, but rather its application to this particular circumstance - where everything about the Program required to adjudicate the case had already been publicly admitted to by the President, the Attorney General, and now-CIA director Michael Hayden.

Judge Taylor's rejection of the state secrets privilege may have as much of an impact as her rejection of the Program itself, as the privilege has been asserted by the government in its attempts to dismiss torture rendition cases like CCR's case on behalf of Canadian Maher Arar (which was dismissed on related grounds) and to cover up a number of other cases of executive misconduct we have described in earlier columns.

Oral argument in our case is scheduled for 2pm on September 5th, and it will deal with both the state secrets privilege and our challenge to the program on the merits - that is, our request for a similar injunction banning the Program. After months of government-engineered delays in our case, we fully expect that Judge Lynch will come to the same conclusions after oral argument takes place on September 5.

I'll simply end this quick post with a quote from our press release which sums up the impact of today's ruling: "The President lied about the existence of the NSA Program for four years. Today's opinion proves that he was also lying when he insisted that the program was legal."

August 17, 2006