First Decision Denouncing Illegal NSA Wiretapping

ACLU, et al v NSA, et al is the first District Court decision declaring that the NSA warrantless wiretapping program in contravention of FISA is illegal. The District Court opinion granted a partial summary judgement in favor of the plaintiffs and an injunction against the Government continuing with the program.

The opinion disposes of the Administration's AUMF and Commander in Chief arguments with aplomb but my favorite part is the following discussion of the President's claim of inherent powers.


"Article II of the United States Constitution provides that any citizen of appropriate birth, age and residency may be elected to the Office of President of the United States and be vested with the executive power of this nation.

The duties and powers of the Chief Executive are carefully listed, including the duty to be Commander in Chief of the Army and Navy of the United States, and the Presidential Oath of Office is set forth in the Constitution and requires him to swear or affirm that he “will, to the best of my ability, preserve, protect and defend the Constitution of the United States.”

The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.

We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all “inherent powers” must derive from that Constitution.

We have seen in Hamdi that the Fifth Amendment of the United States Constitution is fully applicable to the Executive branch’s actions and therefore it can only follow that the First and Fourth Amendments must be applicable as well. In the Youngstown case the same “inherent powers” argument was raised and the Court noted that the President had been created Commander in Chief of only the military, and not of all the people, even in time of war. Indeed, since Ex Parte Milligan, we have been taught that the “Constitution of the United States is a law for rulers and people, equally in war and in peace. . . .” Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866). " (Citations Omitted)

This case has a long way to go, but its biggest hurdles will not be the substance of the case, which I think Scalia, Roberts and Alito would agree with. If it is not upheld it will fall due to the the issue of "standing", which means can these plaintiffs even bring this suit, or the Government's claim that the case cannot be heard without revealing state secrets and thus must be dismissed.