Court: NSA spying program is unconstitutional

[welshTerrier2]

imagine that ... it turns out fascism is against the law ... go figure ...

nice to see that some activist judges are still actively protecting us by correctly interpreting the Constitution!

the Court's opinion (see below) ended with these sage words from Justice Warren on the issue of suspending civil liberties in the name of national security:

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.

source: http://www.mied.uscourts.gov/eGov/taylorpdf/06%2010204.pdf
Note: this link contains the full opinion of the court and is a little slow to load

I. Introduction
This is a challenge to the legality of a secret program (hereinafter “TSP”) undisputedly inaugurated by the National Security Agency (hereinafter “NSA”) at least by 2002 and continuing today, which intercepts without benefit of warrant or other judicial approval, prior or subsequent, the international telephone and internet communications of numerous persons and organizations within this country.

The TSP has been acknowledged by this Administration to have been authorized by the President’s secret order during 2002 and reauthorized at least thirty times since.
1 Plaintiffs are a group of persons and organizations who, according to their affidavits, are defined by the Foreign Intelligence Surveillance Act (hereinafter “FISA”) as “U.S. persons.”
2 They conducted regular international telephone and internet communications for various uncontestedly legitimate reasons including journalism, the practice of law, and scholarship. Many of their communications are and have been with persons in the Middle East. Each Plaintiff has alleged a “well founded belief” that he, she, or it, has been subjected to Defendants’ interceptions, and that the TSP not only injures them specifically and directly, but that the TSP substantially chills and impairs their constitutionally protected communications. Persons abroad who before the program spoke with them by telephone or internet will no longer do so.

Plaintiffs have alleged that the TSP violates their free speech and associational rights, as guaranteed by the First Amendment of the United States Constitution; their privacy rights, as guaranteed by the Fourth Amendment of the United States Constitution; the principle of the Separation of Powers because the TSP has been authorized by the President in excess of his Executive Power under Article II of the United States Constitution, and that it specifically violates the statutory limitations placed upon such interceptions by the Congress in FISA because it is conducted without observation of any of the procedures required by law, either statutory or Constitutional.

Before the Court now are several motions filed by both sides. Plaintiffs have requested a permanent injunction, alleging that they sustain irreparable damage because of the continued existence of the TSP. Plaintiffs also request a Partial Summary Judgment holding that the TSP violates the Administrative Procedures Act (“APA”); the Separation of Powers doctrine; the First and Fourth Amendments of the United States Constitution, and the statutory law.

Defendants have moved to dismiss this lawsuit, or in the alternative for Summary Judgment, on the basis of the state secrets evidentiary privilege and Plaintiffs’ lack of standing. <skip>

XI. Conclusion
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. Defendants’ Motion to Dismiss the final claim of data-mining is granted, because litigation of that claim would require violation of Defendants’ state secrets privilege.

59It is well-settled that a plaintiff seeking a permanent injunction must demonstrate:
(1) that it has suffered an irreparable injury;
(2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury;
(3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and
(4) that the public interest would not be disserved by a permanent injunction. eBay Inc. v. MercExchange, L.L.C. 126 S.Ct. 1837, 1839 (2006). Further, “ party is entitled to a permanent injunction if it can establish that it suffered a constitutional violation and will suffer “continuing irreparable injury” for which there is no adequate remedy at law.” Women's Medical Professional Corp. v. Baird, 438 F.3d 595, 602 (6th Cir. 2006). 43 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.

IT IS SO ORDERED.

Date: August 17, 2006 s/Anna Diggs Taylor
Detroit, Michigan