[Pages 1-2]
I. Introduction
This is a challenge to the legality of a secret program (hereinafter "TSP") undisputedly inaugurated by the National Security Agency (hereinafter "NSA") at least by 2002 and continuing today, which intercepts without benefit of warrant or other judicial approval, prior or subsequent, the international telephone and internet communications of numerous persons and organizations within this country. The TSP has been acknowledged by this Administration to have been authorized by the President's secret order during 2002 and reauthorized at least thirty times since....
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[Pages 13-14, Part II State Secrets Privilege]
...It is undisputed that Defendants have publicly admitted to the following: (1) the TSP exists; (2) it operates without warrants; (3) 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. As the Government has on many occasions confirmed the veracity of these allegations, the state secrets privilege does not apply to this information.
Contrary to Defendants' arguments, the court is persuaded that Plaintiffs are able to establish a prima facie case based solely on Defendants' public admissions regarding the TSP. Plaintiffs' declarations establish that their communications would be monitored under the TSP.7 Further,
Plaintiffs have shown that because of the existence of the TSP, they have suffered a real and concrete harm. Plaintiffs' declarations state undisputedly that they are stifled in their ability to vigorously conduct research, interact with sources, talk with clients and, in the case of the attorney Plaintiffs, uphold their oath of providing effective and ethical representation of their clients.8 In addition, Plaintiffs have the additional injury of incurring substantial travel expenses as a result of having to travel and meet with clients and others relevant to their cases. Therefore, the court finds that Plaintiffs need no additional facts to establish a prima facie case for any of their claims questioning the legality of the TSP.
The court, however, is convinced that Plaintiffs cannot establish a prima facie case to support their data- mining claims without the use of privileged information and further litigation of this issue would force the disclosure of the very thing the privilege is designed to protect. Therefore, the court grants Defendants' motion for summary judgment with respect to this claim.
Finally, Defendants assert that they cannot defend this case without the exposure of state secrets. This court disagrees. The Bush Administration has repeatedly told the general public that there is a valid basis in law for the TSP.9 Further, Defendants have contended that the President has the authority under the AUMF and the Constitution to authorize the continued use of the TSP. Defendants have supported these arguments without revealing or relying on any classified information. 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....
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[Page 15]
III. Standing
Defendants argue that Plaintiffs do not establish their standing. They contend that Plaintiffs' claim here is merely a subjective fear of surveillance which falls short of the type of injury necessary to establish standing. They argue that Plaintiffs' alleged injuries are too tenuous to be recognized, not "distinct and palpable" nor "concrete and particularized."
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[Page 21, 23-24]
Here, Plaintiffs are not asserting speculative allegations. Instead, the declarations asserted by Plaintiffs establish that they are suffering a present concrete injury in addition to a chill of their First Amendment rights. Plaintiffs would be able to continue using the telephone and email in the execution of their professional responsibilities if the Defendants were not undisputedly and admittedly conducting warrantless wiretaps of conversations. As in Friends of the Earth, this damage to their interest is sufficient to establish a concrete injury....
The causal connection between the injury and the conduct complained of is fairly traceable to the challenged action of Defendants. The TSP admittedly targets communications originated or terminated outside the United States where a party to such communication is in the estimation of Defendants, a member of al Qaeda, a member of a group affiliated with al Qaeda, or an agent of al Qaeda or its affiliates.23 The injury to the Plaintiffs stems directly from the TSP and their injuries can unequivocally be traced to the TSP.
Although this court is persuaded that Plaintiffs have alleged sufficient injury to establish standing, 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. It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights. The three separate branches of government were developed as a check and balance for one another. It is within the court's duty to ensure that power is never "condense[d] ... into a single branch of government." Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion). We must always be mindful that "[w]hen the President takes official action, the Court has the authority to determine whether he has acted within the law." Clinton v. Jones, 520 U.S. 681, 703 (1997). "It
remains one of the most vital functions of this Court to police with care the separation of the governing powers . . . . When structure fails, liberty is always in peril." Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 468 (1989) (Kennedy, J., concurring).
Because of the very secrecy of the activity here challenged, Plaintiffs each must be and are given standing to challenge it, because each of them, is injured and chilled substantially in the exercise of First Amendment rights so long as it continues. Indeed, as the perceived need for secrecy has apparently required that no person be notified that he is aggrieved by the activity, and there have been no prosecutions, no requests for extensions or retroactive approvals of warrants, no victim in America would be given standing to challenge this or any other unconstitutional activity, according to the Government. The activity has been acknowledged, nevertheless. Plaintiffs have sufficiently alleged that they suffered an actual, concrete injury traceable to Defendants and redressable by this court. Accordingly, this court denies Defendants' motion to dismiss for lack of standing....
IV. The History of Electronic Surveillance in America
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[Page 28]
The FISA was essentially enacted to create a secure framework by which the Executive branch may conduct legitimate electronic surveillance for foreign intelligence while meeting our national commitment to the Fourth Amendment. It is fully described in United States v. Falvey, 540 F. Supp. 1306 (E.D.N.Y. 1982), where the court held that FISA did not intrude upon the President's undisputed right to conduct foreign affairs, but protected citizens and resident aliens within this country, as "United States persons." Id. at 1312.
The Act was subsequently found to meet Fourth Amendment requirements constituting a reasonable balance between Governmental needs and the protected rights of our citizens, in United States v. Cavanagh, 807 F.2d 787 (9th Cir. 1987), and United States v. Duggan,743, F.2d 59 (2d Cir. 1984).
Against this background the present program of warrantless wiretapping has been authorized by the administration and the present lawsuit filed.
V. The Fourth Amendment
The Constitutional Amendment which must first be discussed provides:
The right the of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, 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.
U.S. CONST. Amend. IV.
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[Page 30]
The Fourth Amendment, accordingly, was adopted to assure that Executive abuses of the power to search would not continue in our new nation....
[Page 31]
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.
VI. The First Amendment
. . . [Page 33] The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well.
VII. The Separation of Powers
The Constitution of the United States provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States. . . ."43 It further provides that "[t]he executive Power shall be vested in a President of the United States of America."44 And that ". . . he shall take care that the laws be faithfully executed . . . ."45
. . . [Page 36-37] In this case, the President has acted, undisputedly, as FISA forbids. FISA is the expressed statutory policy of our Congress. The presidential power, therefore, was exercised at its lowest ebb and cannot be sustained....
In this case, if the teachings of Youngstown are law, the separation of powers doctrine has been violated. The President, undisputedly, has violated the provisions of FISA for a five-year period. Justice Black wrote, in Youngstown:
These secret authorization orders must, like the executive order in that case, fall. They violate the Separation of Powers ordained by the very Constitution of which this President is a creature.
VIII. The Authorization for Use of Military Force
. . . [Page 39] The AUMF resolution, if indeed it is construed as replacing FISA, gives no support to Defendants here. Even if that Resolution superceded all other statutory law, Defendants have violated the Constitutional rights of their citizens including the First Amendment, Fourth
Amendment, and the Separation of Powers doctrine.
[Page 40-41]
IX. Inherent Power
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.48
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,49 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."50
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.51 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.52 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). Again, in Home Building & Loan Ass'n v. Blaisdell, we were taught that no emergency can create power.53
Finally, although the Defendants have suggested the unconstitutionality of FISA, it appears to this court that that question is here irrelevant. Not only FISA, but the Constitution itself has been violated by the Executive's TSP. As the court states in Falvey, even where statutes are not explicit, the requirements of the Fourth Amendment must still be met.54 And of course, the Zweibon opinion of Judge Skelly Wright plainly states that although many cases hold that the President's power to obtain foreign intelligence information is vast, none suggest that he is immune from Constitutional requirements.55
The argument that inherent powers justify the program here in litigation must fail.
X. Practical Justifications for Exemption
... [Page 42] It is noteworthy, in this regard, that Defendants here have sought no Congressional amendments which would remedy practical difficulty.
As long ago as the Youngstown case, the Truman administration argued that the cumbersome procedures required to obtain warrants made the process unworkable.56 The Youngstown court made short shift of that argument and, it appears, the present Defendants' need for speed and agility is equally weightless. The Supreme Court in the Keith57, as well as the Hamdi58 cases, has attempted to offer helpful solutions to the delay problem, all to no avail.
XI. Conclusion
For all of the reasons outlined above, this court is constrained to grant to Plaintiffs the Partial Summary Judgment requested, and holds that the TSP violates the APA; the Separation of Powers doctrine; the First and Fourth Amendments of the United States Constitution; and the statutory law....
[Page 43]
The Permanent Injunction of the TSP requested by Plaintiffs is granted inasmuch as each of the factors required to be met to sustain such an injunction have undisputedly been met.59 The irreparable injury necessary to warrant injunctive relief is clear, as the First and Fourth Amendment rights of Plaintiffs are violated by the TSP. See Dombrowski v. Pfister, 380 U.S. 479 (1965). The irreparable injury conversely sustained by Defendants under this injunction may be rectified by compliance with our Constitution and/or statutory law, as amended if necessary. Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution.
As Justice Warren wrote in U.S. v. Robel, 389 U.S. 258 (1967):
IT IS SO ORDERED.
