A district judge struck down the NSA program on First and Fourth Amendment grounds as well as statutorily (FISA). Many bloggers were positive, but critical about the reasoning. A useful place to go for that controversy is here, since various bloggers with their own thoughts are found in the comments with links to their own blogs. See also here, a positive account that notes that the basic principles of the ruling were right, and the criticism to be expected. Anyway, it will be appealed.
I agree. The agonizing over the reasoning seems a bit ridiculous. The Sixth Circuit will re-examine such things "de novo" (from scratch). They can whittle down the more dubious arguments, such as the First Amendment (even fear of eavesdropping, which the government refuses to affirm/deny, problematic). ["Problematic" does not mean I disagree with them per se, but they might be on weaker ground and/or less likely to be accepted upon review.] And, various critics thinks the bottom line is correct (see, e.g., Balkinization).
As to pleading questions, which simply is not my area, replies to the thread I cited noted the "error" is a lot less clear than the critics suggest. One in fact notes the core facts at hand is knowable only by the judge, the public seeing key arguments "redacted." Or, the relevant details are not in dispute, so the judge did not do anything wrong. It comes down to a lawyer vs. lawyer dispute, which leads me to think the judge should have the benefit of the doubt unless she clearly is wrong.
[The core paragraph in this respect appears to be:
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.]
And, the bottom line is that a judge is on record, and not the first, saying what principled sorts like George Will think it is "risible" to deny:
This monarchical doctrine emerges from the administration's stance that warrantless surveillance by the National Security Agency targeting American citizens on American soil is a legal exercise of the president's inherent powers as commander in chief, even though it violates the clear language of the 1978 Foreign Intelligence Surveillance Act, which was written to regulate wartime surveillance. ...
That non sequitur is refuted by the Constitution's plain language, which empowers Congress to ratify treaties, declare war, fund and regulate military forces, and make laws "necessary and proper" for the execution of all presidential powers . Those powers do not include deciding that a law -- FISA, for example -- is somehow exempted from the presidential duty to "take care that the laws be faithfully executed."
Now, Will added:
Immediately after Sept. 11, the president rightly did what he thought the emergency required, and rightly thought that the 1978 law was inadequate to new threats posed by a new kind of enemy using new technologies of communication. Arguably he should have begun surveillance of domestic-to-domestic calls -- the kind the Sept. 11 terrorists made.
But 53 months later, Congress should make all necessary actions lawful by authorizing the president to take those actions, with suitable supervision. It should do so with language that does not stigmatize what he has been doing, but that implicitly refutes the doctrine that the authorization is superfluous.
This is bogus. The article is from months back, but we know the FISA law was not somehow "obsolete" after 9/11. Likewise, Congress asked the administration if it needed the law tweaked (Sen. DeWine [R] was centrally involved), and they said "no thanks." And, why shouldn't Congress "stigmatize" actions the column as a whole ridiculed and deemed "monarchical?" I refer you to the side panel, particularly the book on the Guarantee Clause that says the United States shall guarantee a republican form of government.
As the book discusses, such claims have not been deemed "justiciable" by the federal courts, but the basic protections are covered in other ways. Since two thirds of the national government (aka "the United States") is not doing their job here, this is a good thing. For what it is worth, and the benefits of the Supreme Court's rulings in cases like Hamdi and Hamdan have been shown to be somewhat limited in practice, that is the core value of this ruling.
And, the ruling is what ultimately counts, not parts of its reasoning. Maybe, this will be proven wrong, but I sort of doubt it. Even if the Sixth Circuit rules for the government, some reliance on glaring error by the lower court judge will most likely be an excuse. Anyway, some called the judge's ruling "heroic." If so, we have reached a sad state of affairs when upholding the Constitution by a federal court judge against reasoning so few really take seriously any more meets that definition.
It was a good day for American liberty though. One more roadblock to limitless executive power, one more voice in support for checks and balances, and one more source of official quotables that can influence public opinion and maybe even Congress. And, perhaps the people too, who can make their voice known many ways, including in November.
All good even if the Bushies ignore the ruling and their chattering supporters focus more on the politics of the judge and so forth. [See, e.g., here.] These rulings might not do as much as one hopes, but (even if in some fashion only indirectly) they do more than some suggest.
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Update: I have read the opinion. I personally do not see why so many (including some who agreed with its conclusions) have found it compelling to note how shoddy it was written. It covers all possible grounds; some might be less strong than others, but so what? The statutory and separation of powers aspects of the opinion especially are well done. The state secrecy doctrine discussion also looks pretty good, including why the claim can be carried forth. The dismissal of the data mining claim is rather cavalierly done though.
The First Amendment discussion is a bit thin -- basically the program chills expression, First/Fourth Amendment intimately connected, and since the program doesn't past muster, the claim holds. More could have been offered -- earlier various cases was cited to underline the plaintiffs have standing largely on First Amendment grounds. Some seem to think this is a slim leg to stand on (no pun intended), but that was the case. And, it does seem the government put all their eggs in the state secrecy basket. This idea more facts (summary judgment unfounded) might come to light so she was so very wrong to decide in this fashion seems wrong.
Overall, the substance of the opinion -- putting aside possible standing issues that are important but not compelling at the end of the day ("we are wrong, but you can't officially say we are" might help the government, but they still would be wrong) -- holds up. I'd add as to standing, the ruling spoke of "constitutionally protected communications" in language with both First and Fourth Amendment connotations. Maybe, more could have been done to tie it to the latter, but for this set of plaintiffs, a clear First Amendment focus was involved. Anyway, again, the two tie together ... have (see the opinion) from the beginning.
Check it out ... quite readable.