NSA Warrantless Surveillance Decision

Some interesting excerpts from the decision:

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.
As Justice Warren wrote in U.S. v. Robel, 389 U.S. 258 (1967):
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.

NSA warrantless surveillance decision

The judge ruled that not only does the NSA warrantless surveillance program violate the fourth amendment prohibition on unreasonable search and seizure, it also violates the first amendment right to free speech because of the chilling effect of government monitoring of communications without probable cause. The separation of powers and the FISA law are also violated by this program.

..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 II, 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 condensed into a single branch of government."

Without warrants approved by the Judiciary, there is no check on the power of the executive. In ignoring the Constitution, FISA, and Title II, the President is ignoring the law as approved by the legislative branch. The Constitution divides the government into three branches to provide checks and balances so one branch does not have all encompassing power.

"The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly 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."

The President's power comes from the Constitution. He cannot choose to ignore portions of the document that provides the basis for his authority.

"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 power not created by the Constitution. So all "inherent power" must derive from that Constitution."

Despite the writings of John Yoo, there is not a unitary executive. The separation of powers is one of the most important aspects of our government framework laid out in the Constitution.

The recent Hamdan decision by the Supreme Court reinforces this limit on Presidential power. Even Scalia, regarded as the most conservative justice, argued on a limited interpretation of judicial power in the 2004 Hamdi decision.

A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions.
...
But whether the attacks of September 11, 2001, constitute an “invasion,” and whether those attacks still justify suspen-sion several years later, are questions for Congress rather than this Court. See 3 Story §1336, at 208–209.6 If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of this Court.

*** The Founders well understood the difficult tradeoff between safety and freedom. “Safety from external dan-ger,” Hamilton declared, “is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free.” The Federalist No. 8, p. 33.

The Founders warned us about the risk, and equipped us with a Constitution designed to deal with it. Many think it not only inevitable but entirely proper that liberty give way to security in times of national cri-sis—that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitu-tion designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.

Scalia agrees that the Constitution is designed "precisely to confront war, and in a manner that accords democratic principles, to accomodate it."

This President cannot be allowed to ignore the US Constitution and the Bill of Rights. 

"If the three powers maintain their mutual independence on each other our Government may last long, but not so if either can assume the authorities of the other."

--Thomas Jefferson to William Charles Jarvis, 1820. ME 15:278

"The idea of separating the executive business of the confederacy from Congress, as the judiciary is already in some degree, is just and necessary." --Thomas Jefferson to James Madison, 1787. ME 6:131