Once upon a time, the courts of the United States acted in the interests of the United States. They knew that international affairs, the conduct of war, and the protection of Americans from foreign threats stood far beyond the judicial ken. As Supreme Court justice Robert Jackson wrote in 1948, sensitive matters of foreign policy and national security involve “decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.”
Enter Anna Diggs Taylor, chief judge of the federal district court in Detroit. She has just purported to find unconstitutional the Bush administration’s Terrorist Surveillance Program (TSP) — an early-warning system crucial to protecting the nation from attack. In so doing, she has become the latest jurist to illustrate how far we have strayed from Justice Jackson’s wisdom.
The TSP, carried out by the National Security Agency, is a classic signals-intelligence initiative of the type central to every successful American war effort since the founding. The idea is to penetrate enemy communications and thwart attacks. The NSA monitors international communications, including those into and out of the United States, when there is a reasonable basis to believe that an al Qaeda operative is on at least one end of the conversation.
Having witnessed 9/11, Americans broadly support the TSP. But ever since the end of 2005 — when government officials illegally disclosed its existence to the New York Times, which promptly compromised it — it has come under assault from the anti-American Left, civil-liberties extremists, and Muslim activists.
To block litigation by this coalition from providing the enemy with incalculably valuable intelligence, the administration invoked the “state-secrets privilege” — a 150-year-old legal tool that allows the federal government to dismiss cases that might compromise national-defense information. This should have been the end of the story. Taylor, however, reasoned that the state-secrets privilege only protected the government from litigation that would require it to disclose informants, and did not apply to other kinds of intelligence collection.
In Justice Jackson’s day, it would have been taken for granted that intercepting enemy communications into and out of the United States is vital to the prosecution of a war, and that the state should be protected from having to reveal information that would compromise such efforts. For Judge Taylor, though, there are more important interests than protecting Americans from attack. There are lawyers who want to represent al Qaeda sympathizers; there are journalists who want to write about al Qaeda sympathizers; there are Muslim activist groups who want to agitate on behalf of al Qaeda sympathizers.
And so she found that the plaintiffs in the case — mainly attorneys and journalists — had standing to sue. Standing rules of course require a plaintiff to establish that he has suffered a unique, concrete injury that can be redressed by court action. They are designed to ensure that matters of general rather than individual concern are decided by the political branches accountable to the public, not by the courts. Yet Taylor found, in flat contravention of Supreme Court precedent, that the plaintiffs were harmed because both they and the al Qaeda suspects they wished to contact had been “chilled” from communicating.
This reasoning is ludicrous. Americans have no reasonable expectation of privacy when seeking to communicate with persons outside the United States. U.S. privacy law consequently does not — cannot — apply. Moreover, virtually every intelligence agency in the world is pursuing al Qaeda operatives and intercepting their communications. In Judge Taylor’s perfect world, only the U.S. — the primary target of al Qaeda — would be forbidden to do so.
To justify her finding that the plaintiffs had standing to sue, she could do nothing but wave the banner of the imperial judiciary. If the plaintiffs lacked standing, she fretted, the “the President’s action in warrantless wiretapping . . . would be immunized from judicial scrutiny.” But judicial scrutiny is the very antithesis of what is supposed to happen here. The Supreme Court affirmed in 1991 that, in a close case (which this isn’t), judges are to “presume that federal courts lack jurisdiction.”
In short, Judge Taylor ran roughshod over all the rules that should have kept her from deciding this case in the first place. But decide it she did, finding that the TSP violates the separation of powers and the Fourth Amendment because it does not seek judicial warrants under the Foreign Intelligence Surveillance Act to authorize its activities. She ruled thus notwithstanding that every federal appellate court to consider the issue, including the Foreign Intelligence Surveillance Court of Review itself, had previously found that the president has inherent constitutional authority to conduct warrantless wiretapping to protect the nation from external threats.
In disregarding this consensus, she effectively claimed that the only public official elected by all Americans — an official whose primary duty happens to be safeguarding the security of the United States — is powerless to order surveillance against an enemy in wartime unless a federal judge says he can. The Framers would be appalled. And so should we.
Editor’s note: This editorial has been amended since posting.