War, law and justice

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Judge Anna Diggs Taylor's recent opinion striking down the National Security Agency's terrorist surveillance program is neither an accurate statement of what the law is nor of what it should be. To her credit, Judge Taylor made no secret of how she approached this case.

Early in her opinion she refers to "the War on Terror of this administration." In other words, this is not her war and it's not America's war, it's George W. Bush's war, and the judge was clearly determined to hold at least one aspect of that war — the NSA surveillance program — unconstitutional. She did so based on a deeply flawed rationale.

Most critics have challenged the program's legality on statutory, rather than constitutional, grounds. The Foreign Intelligence Surveillance Act (FISA) generally requires a special judicial order before the government can intercept electronic communications for foreign intelligence purposes, except as otherwise "authorized by statute." The Bush administration argues that the NSA program was authorized by statute in the form of Congress' Sept. 18, 2001, Authorization for the Use of Military Force (AUMF).

That law authorized the president "to use all necessary and appropriate force" against those responsible for the September 11 attacks, and the Supreme Court has already interpreted the AUMF, in its 2004 Hamdi v. Rumsfeld ruling, to provide statutory permission for all of the "fundamental incident of waging war." This case was not affected by the court's more recent war on terror decision in Hamdan v. Rumsfeld, where it concluded — based on a different statutory text that was not impacted by the AUMF — that military commission rules must be consistent with those applied in regular courts-martial.

Obviously, many believe that electronic surveillance in the United States is just too far removed from the "fundamental incidents of war" to have been justified, without more specific language, by the AUMF. Judge Taylor, however, fails to confront or answer the administration'sactual Hamdi/AUMF argument. Instead, she concluded that the NSA program would be unconstitutional even if authorized by Congress in the AUMF. She based this extraordinary ruling on a misconstruction of both the Fourth and First Amendments.

The Fourth Amendment prohibits "unreasonable searches and seizures," and requires that search warrants be issued only on a probable cause showing. The Supreme Court has ruled that most warrantless searches are unreasonable, except in cases of "special needs." Special needs cases include instances where individuals are leaving or entering the United States, and are very similar to the international or trans-boundary communications subject to the NSA program. Judge Taylor does not reconcile this important exception to the general rule with her sweeping claims that prior warrants are required "for any reasonable search."

Nor did she grapple with cases — including the Fourth Circuit's leading decision in United States v. Truong (1980) — upholding warrantless surveillance for foreign intelligence gathering purposes. Truong involved the wiretapping of a Vietnamese citizen and his U.S. contact, as part of an effort to discover who was leaking classified information. The court upheld the surveillance under the Fourth Amendment since the government's primary purpose had been collection of foreign intelligence information — rather than a criminal investigation. Truong and the 2002 FISA Appeals Court's opinion in In re Sealed Case are not, of course, Supreme Court decisions binding on Judge Taylor. But, at a minimum, she should have acknowledged the existence of such important contrary authority, and explained why she considered a different rule to be more appropriate.

Most troubling of all, however, is Judge Taylor's First Amendment analysis. She concluded that the NSA program violated free speech guarantees because the president "undisputably violated the Fourth Amendment in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well." In fact, a Fourth Amendment violation does not necessarily or even likely result in a First Amendment violation. Although, as Judge Taylor noted, the Supreme Court has recognized that "[n]ational security cases ... often reflect a convergence of First and Fourth Amendment values," the amendments' purposes and protections are distinct, as are the analyses necessary to determine whether one or both have been violated.

Critically, the Fourth Amendment permits government action based upon probable cause, while the First Amendment requires regulation of protected speech to be narrowly tailored to achieve a compelling governmental interest.

Standards aside, the logical implications of Judge Taylor's First Amendment conclusions are unprecedented. If the NSA program's very existenceimpermissibly "chilled" plaintiffs, several advocacy groups, lawyers and journalists, in speaking with known or suspected terrorists overseas, and the terrorists in speaking with them, then the government can never intercept foreign intelligence — with or without congressional approval or a warrant — unless it also can show that the program is narrowly tailored to serve a compelling interest. The courts rarely find this standard to be met.

Judge Taylor has had a long and distinguished career — serving on the federal bench since 1979. In this opinion, however, she has served neither justice nor the rule of law. It will be up to the court of appeals and, ultimately, the Supreme Court to set things right.

David B. Rivkin Jr. and Lee A. Casey served in the Justice Department under Presidents Reagan and George H.W. Bush.