An injunction in the NSA wiretap case

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District Court Judge Anna Diggs Taylor has just enjoined the NSA's domestic wiretap program (opinion here) (þ TPM). I've just skimmed it, but some things jump out:
  • The opinion explicitly considers and mostly rejects the state secrets defense. At least part of the basis for this is that the existence of the program is already public knowledge.
  • The state secret defense privilege is allowed in the specific data mining claim where the plaintiffs wanted to do discovery.
  • The opinion is grounded explicitly in the First and Fourth Amendments, so it's not entirely clear that this could be remedied by legislation. At minimum, such legislation would itself need to undergo review.
  • The "inherent powers" defense was also rejected.

I'm not making any claims about the correctness of this decision one way or the other. I'm not a lawyer and I haven't had time to study it. Moreover, obviously one should expect the government to appeal this.


I'm picturing this response from the Bush administration:

"Ok Judge, we stopped that NSA domestic spying program. The one we have in place now is totally different. Of course, we haven't given any details of which program includes what procedures, so you go ahead and try to prove we're violating the terms of the injuction."

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