MORE ON WARRANTLESS WIRETAPPING….When I posted earlier today about the court ruling striking down the NSA’s domestic spying program, all I had to go on was a two-paragraph AP dispatch. Since then, Glenn Greenwald has read the opinion and lays out what the court said. A few highlights:
Third, the court ruled ? rather emphatically and without much doubt ? that warrantless eavesdropping violates the Fourth Amendment’s prohibition on unreasonable searches and seizures (generally speaking, searches undertaken in the absence of a probable cause warrant).
….Sixth, the court swiftly and dismissively rejected the administration’s claim that the AUMF constitutes authorization to eavesdrop in violation of FISA, noting that FISA is an extremely specific statute while the AUMF says nothing about eavesdropping. In any event, as the court noted, since the court found warrantless eavesdropping unconstitutional, Congress could not authorize warrantless eavesdropping by statute.
….Finally, and really quite extraordinarily, the court (a) declared the NSA program to be in violation of FISA, the First Amendment and Fourth Amendment and (b) issued a permanent injunction enjoining the Bush administration from continuing to eavesdrop in violation of FISA.
In other words, if this decision isn’t overturned on appeal then the NSA program is unconstitutional, not merely a violation of FISA. Thus, it wouldn’t be possible for new legislation to legalize it.
Jack Balkin has more analysis here. He likes the result, but says that “much of the opinion is disappointing, and I would even suggest, a bit confused.” This matters, since an appeal will certainly be filed immediately. Stay tuned.