UPDATE II: The (PDF) decision, via Feministe. From the conclusion (read through the argument citing separation of powers, first amendment and fourth, as well as other grounds).
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.
...
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.
And then she cites U.S. v. Robel:
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. Id. at 264.
Zuzu highlights the money quote from the document, which I'll repeat here::
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.
ORIGINAL POST
From CNN:
A federal judge has ruled that the federal government's warrantless wiretapping program is unconstitutional and ordered it ended immediately.
There is going to be a hurricane of "I told you so" flying around. Also a lot of celebrating. I'm anxious to see what the decision really says (beyond the CNN breaking news headline).
UPDATE
Posted by binky at August 17, 2006 12:33 PM | TrackBack | Posted to The Ever Shrinking ConstitutionU.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency's program, which she says violates the rights to free speech and privacy.
The American Civil Liberties Union filed the lawsuit on behalf of journalists, scholars and lawyers who say the program has made it difficult for them to do their jobs. They believe many of their overseas contacts are likely targets of the program, which involves secretly taping conversations between people in the U.S. and people in other countries.
The government argued that the program is well within the president's authority, but said proving that would require revealing state secrets.
The ACLU said the state-secrets argument was irrelevant because the Bush administration already had publicly revealed enough information about the program for Taylor to rule.
Well I wouldn't make too much of it at the moment as this will be taken up by other Courts.
For whatever it's worth, the 6th Circuit (which will hear the appeal) includes 6 George W. Bush appointees (our of 14 judges on the Court). It also includes two veteran judges that are conservative enough to have come up in discussions of last year's Supreme Court appointments, Chief Judge Boggs and Judge Batchelder.
And even if it makes it through there, there's always the Supremes.
Posted by: Armand at August 17, 2006 02:04 PM | PERMALINKAnd so it begins. Hilzoy, Lemieux, Greenwald.
Posted by: binky at August 17, 2006 03:22 PM | PERMALINKI realize that this is only the first step of several (legal) one, but the decision seems so sweeping (and the legal process generally so slow) that Bush may be forced to negotiate out of this, not win it all in the courts.
Posted by: baltar at August 17, 2006 03:32 PM | PERMALINKGreenwald is already on the response (in his updates)... that the judge is a black woman Carter appointee is getting a considerable degree of emphasis. Lovely.
Posted by: binky at August 17, 2006 03:38 PM | PERMALINKI hate to say this, because he's such a pathetic self-promoting whiny dork, but great early work by Greenwald.
Posted by: jacflash at August 17, 2006 04:07 PM | PERMALINKThat's kind of the way I feel too (and not just about Greenwald, but Americablog and some others), but he's fast out of the gate. And if dorky, it serves him well in the analysis. I don't know from law (maybe moon will dust off his keyboard and give 'er a go for us?) but Greenwald at least seems to acknowledge strengths and weaknesses of the decision.
Posted by: binky at August 17, 2006 04:13 PM | PERMALINKhave printed it out, but haven't read it. it sounds at first blush (greenwald, hilzoy, lemieux are what i've read) like the arguments she adopted are fairly familiar, although the A1 analysis (sorry -- First Amendment, shorthand habit) sounds somewhat novel. interestingly, it sounds like she focused on a chilling effect on free speech but didn't consider free association. i would have thought the latter was a more likely candidate for a non-A4 basis to strike down the law, at least within the bill of rights, but if that wasn't pursued by the parties that probably wouldn't come up in the opinion.
anyway, i did print it out, and my keyboard isn't _that_ dusty, at least not as regards this site, so perhaps i'll come back with more to say soon.
Posted by: moon at August 17, 2006 10:24 PM | PERMALINKIndeed, the dust reference was in regard to your own site. No negative implication as to the frequency of your activity here.
Posted by: binky at August 17, 2006 11:03 PM | PERMALINKAmong those with big problems with this opinion: Jack Balkin, Orin Kerr, Eugene Volokh and Publius. The law blogs seem less than impressed (to put it mildly) with the reasoning. Publius at Legal Fiction calls it an atrocity (though he likes the result).
Posted by: Armand at August 18, 2006 08:37 AM | PERMALINKTaking what Publius has written at face value, it's hard to imagine he's wrong. He certainly accurately stated the procedural law; the only thing I'm not as sure of is his account of the judge's reasoning for resolving this controversy at this stage. From what I gather, he's not saying she didn't try to explain why, he's just rejecting the explanation. So i need to read, still.
Posted by: moon at August 18, 2006 11:10 AM | PERMALINKThere's a good canned summary of lawblog thinking in the NYT here. Upshot: good decision, lame reasoning.
Posted by: jacflash at August 19, 2006 11:15 AM | PERMALINK