Not to go into overkill, but a few more words on the NSA ruling.
[I read Ann Althouse's NYT editorial sneering at the ruling after I wrote this. GG is on the case, and underlines how pathetic the outing is. What is appalling though is that it was published as a sort of "conservative" p.o.v. on the editorial page of the NYT. Now, the editorial content on the page leaves something to be desired overall (six more months, Tom?), but people expect a certain sort of cachet there all the same. This sort of thing corrupts the public discourse to no end, and the paper itself deserves some of the blame.]
Judge Posner was upset that the Supreme Court had an "18th Century" mentality about current problems. Well, no originalist he, apparently. He was no big fan of Justice Breyer's book, but they both have a present day reality feel for things, I guess. Still, one of them (guess who) seems to be still loyal to Marbury v. Madison.
The ruling has a key section discussing how certain executive actions are "political," but others that touch upon individual rights are rightly the jurisdiction of the judiciary. And, various opinions of that era suggest this includes those touching upon foreign affairs and military matters. This included conflicts arising from the "quasi-war" with France, and following the will of the executive over the law of the land respecting national security matters.*
The book on the Guarantee Clause (side panel) referenced a few cases from the civil rights era that also seem relevant here. One concerned stopping interference with a school board's attempt to obey Brown. It suggests that those who say Judge Diggs-Taylor should have solely relied on statutory grounds (FISA) might have missed the point. Basically, the plaintiffs had the constitutional right to be free from invasion via execution action that breached national laws clearly in place in part to protect them.
FISA was not only a separation of powers issue; it was clearly in place to help the people in their "right ... to be secure in their persons, houses, papers, and effects." Thus, the people have a "privilege and immunity" against invasion. To cite the ruling:
Plaintiffs are under a duty to obey the Constitution. Const. Art. VI, cl. 2. They are bound by oath or affirmation to support it and are mindful of their obligation. It follows as a necessary corollary that they have a federal right to be free from direct and deliberate interference with the performance of the constitutionally imposed duty. The right arises by necessary implication from the imposition of the duty as clearly as though it had been specifically stated in the Constitution. ... The existence of a Constitutional duty presupposes a correlative Constitutional right in the person for whom the duty is to be exercised.
-- Brewer v. Hoxie School District (5th Cir. 1956)
FISA sets forth a "duty" with clear constitutional overtones partially for the purpose of protection certain persons (being monitored etc.). The theme also arises as far back as the Slaughterhouse Cases, which narrowly defined Fourteenth Amendment privileges and immunities of citizenship but did list among them the protection of national laws, including treaties. Laws that literally set up "privileges" that the government has some flexibility to "prescribe for the general good of the whole," but are in place to secure the liberties of national citizens (due process and equal protections in place to guard against arbitrary invasions of the rights of lawful residential aliens) all the same.
It seems ill-advised not to focus on the invasion of rights of citizens, which the focus on FISA seems to suggest. Clearly, the critics still would focus somewhat on individual rights -- they had to have standing somehow! But, besides being unnecessarily narrow (it is not like the judge did not bring up the FISA issue**), it is so in such a way that the general public is not really the focus. It becomes some academic debate over separation of powers and such. That is, almost "political" in nature. Shall we not also refer to rights "to full and equal benefit of all laws and proceedings for the security of person and property?"
To toss something in, I read an interesting essay comparing British national security laws with our own. The theme was not necessarily that we should just adopt them. It was that in practice, they arguably are more protective to civil liberties than our own. Thus, we might just learn something from them. One thinks of the criticism of our media -- no First Amendment, but often it seems European news sources are more informative on issues of the day than our own. And, though we have no parliamentary system, it seems that way sometimes, without the added safeguards (question time, more opportunity to change the government) of the Brits.
I guess that requiring President D. to answer questions can be a bad thing all the same. Perhaps, it is a national security issue ... again not by the letter of the law, just how it is carried out. Seriously, that sort of thing depresses (toss in anger and black humor, depending on my mood) me to no end ... clearly people have power for any number of reasons, competence not necessary one of them.
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* Thus, the judge here quoted an anti-communist era ruling by CJ Warren:
Implicit in the term 'national defense' is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which makes the defense of the Nation worthwhile.
The comparison is for some reason not made too often, but is not that era comparable to this one, including the concern for grave and numerous domestic threats working to overthrow our government and laws? In fact, FISA was passed because of excesses of the period.
** For example: "Both statutes have made abundantly clear that prior warrants must be obtained from the FISA court for such surveillance, with limited exceptions, none of which are here even raised as applicable." She just covered all the bases, which is actually what she should have done:
The AUMF resolution, if indeed it is construed as replacing FISA, gives no support to Defendants here. Even if that Resolution superseded 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.