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Free Speech Rights For Terror Suspects?

The Federal District Court for the Eastern District of Michigan today granted partial summary judgment to the Plaintiffs in the ACLU v. NSA wiretaps case, stating that the NSA wiretap program violates the Administrative Procedures Act, the Separation of Powers doctrine, the First and Fourt Amendments, and FISA. The court dismissed the Plaintiffs' claims in regard to data-mining.

I just want to focus on one aspect of the opinion here. In order to bring a case such as this, the plaintiff has to prove that they have standing to bring the case. Not just anyone can bring any case - you must prove that you have been harmed in some way. So check out the court's reasoning for granting such standing -

"Plaintiffs here contend that the TSP has interfered with their ability to carry out their professional responsibilities in a variety of ways, including that the TSP has had a significant impact on their ability to talk with sources, locate witnesses, conduct scholarship, engage in advocacy and communicate with persons who are outside the United States . . . [plaintiffs] indicate that they must conduct extensive research in the Middle East, Africa and Asia, and must communicate with individuals abroad whom the United States government believes to be terrorist suspects or to be associated with terrorist organizations."

Get it? Ivory tower intellectuals having unfettered communication with terrorist suspects is more important than preventing these terrorists from murdering people apparently. The court then laments the increased financial burdens and 'inefficient' means of communication that our all-important eggheads must now endure, all due to mere speculation that someone might possibly be tracking their call. Mind you, the plaintiffs never proved that any such thing was going on, but the mere whiff of suspicion that it might be happening is enough to justify bringing the entire program to a crashing halt. And it isn't really that the free speech of the plaintiffs has been chilled - oh no, the problem is that it chills the terrorist suspects from communicating with learned professors! Heaven forbid!

I am actually being unfair here. The entirety of the case does not rest on the critical need of scholars to communicate with suspected terrorists. This issue of standing was only one of many that the court addressed, including the state secrets doctrine, the separation of powers and so on. But . . . to read the priorities the courts assigns here is to wonder if they followed a white rabbit down the hole in deciding that the chilled free speech of terror suspects should be the deciding factor in the critical Standing argument.

Posted by Ken McCracken · 17 August 2006 02:58 PM


Thanks for oversimplifying a complex case. This type of un-warranted wire tapping affects everyone and has almost nothing to do with the assinine examples you give. If you're willing to give up your rights, please feel free but I'm not willing to give up mine.

-Average white American guy from Texas

Posted by: Nunya Bidness at August 17, 2006 05:42 PM

First of all, it isn't that complex a case. Perhaps for you it is, but in reality the issues are not that complex, and the court did not even delve into the issues presented in nearly the depth that it could have.

Second, what are the 'asinine' examples I have given? I have not given 'examples' of anything.

Did you even read my post?

And as for giving up your rights . . . are you asserting that the President has no right to engage in warrantless searches of foreign communications in time of war?

Please cite your authority for this dubious proposition.

Posted by: Ken McCracken at August 17, 2006 06:41 PM

Does each day have to give more evidence that many Americans are willing to put party and self-interest ahead of the kind of security that might allow us to continue to exercise our freedoms and liberties? Wouldn't you know this is the extremely poorly reasoned decision of a Carter appointee?...

Posted by: Zsa Zsa at August 17, 2006 07:40 PM

Without tipping my hands on this issue (I haven't been able to read the decision yet, and thus am unqualified to comment), it really is a cheap and ineffective argument to go after a judge based upon who appointed him or her.

Posted by: cuiusquemodi at August 17, 2006 09:08 PM

I think you just tipped your hand on this issue...

Posted by: Zsa Zsa at August 17, 2006 09:34 PM

Well, I have read the opinion, and it is every bit as poorly thought out, poorly constructed, and poorly worded, as the Jackson opinion in Youngstown that Judge Taylor refers to.

Nor am I alone in that opinion. Professor Volokh, no fan of the NSA program, says,

…not just ill-reasoned, but rhetorically ill-conceived… rich in generalities, platitudes . . . and poor in detailed discussion of some of the government’s strongest arguments.

While Professor Orin Kerr wrote,

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).” … an opinion that isn't quite ready for prime time.

Professor Dale Carpenter wrote,

I am one of those who believes that the NSA program is not authorized by the AUMF, that it violates FISA, that FISA is a constitutional exercise of congressional power, and that therefore the NSA program is both illegal and unconstitutional.

…(but) I'd be willing to bet that at either the appellate court or the Supreme Court the suit will be dismissed for lack of standing.

While John Hinderaker wrote,

I recall being taught as a preschooler that "just because" isn't a good argument. The only way it could get weaker is by adding a reference to Justice Jackson's dim-witted concurring opinion in Youngstown Sheet and Tube, which not one of his fellow justices was foolish enough to join in… It would be hard to think of a sillier construct that has been taken seriously by people who should know better, and it is no surprise that a result-oriented left-wing judge would seize on Jackson's tissue of confusion to justify her preordained conclusion.

Finally, there is the Wall Street Journal,

Regarding the Fourth Amendment: (Judge Taylor) manages to forget or overlook that no one is being denied his liberty and no evidence is being brought in criminal proceedings based on what the NSA might learn through listening to al Qaeda communications. The wiretapping program is an intelligence operation, not a law-enforcement proceeding. Congress was duly informed, and not a single specific domestic abuse of such a wiretap has yet been even alleged, much less found.”

As for the First Amendment, Judge Taylor asserts that the plaintiffs--a group that includes the ACLU and assorted academics, lawyers and journalists who believe their conversations may have been tapped but almost surely weren't--had their free-speech rights violated because al Qaeda types are now afraid to speak to them on the phone.

But the wiretapping program is not preventing anyone from speaking on the phone. Quite the opposite--if the terrorists stopped talking on the phone, there would be nothing to wiretap. Perhaps the plaintiffs should have sued the New York Times, as it was that paper's disclosure of the program that created the "chill" on "free speech" that Judge Taylor laments.

Before yesterday, no American court had ever ruled that the President lacked the Constitutional right to conduct such wiretaps. President Carter signed the 1978 FISA statute that established the special court to approve domestic wiretaps even as his Administration declared it was not ceding any Constitutional power. And in the 2002 decision In Re: Sealed Case, the very panel of appellate judges that hears FISA appeals noted that in a previous FISA case (U.S. v. Truong), a federal "court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." We couldn't find Judge Taylor's attempt to grapple with those precedents, perhaps because they'd have interfered with the lilt of her purple prose.

Yep, that should about cover it.

Posted by: Bat One at August 18, 2006 12:35 AM

Yep, I agree with Bat One! That should cover it.

Posted by: Zsa Zsa at August 18, 2006 09:06 AM

"In their haste to go blow themselves up the Iraqi Insurgents, ahhh the good people they are, forgot to complete the burial of another mass grave..."

Posted by: will at August 24, 2006 08:13 AM