ACLU v. NSA: "A Fearless and Independent Judiciary"

On August 17, federal judge Anna Diggs Taylor held that President Bush's NSA surveillance program violates both the Foreign Intelligence Surveillance Act of 1978 and the Constitution. Although I agree wholeheartedly with Judge Taylor's conclusion, I was surprised by the decision. It takes a good deal of courage for a judge to hold unlawful a program that the President of the United States asserts is essential to the national security. Too often, judges in wartime have failed to uphold the rule of law. Too often, they have sustained programs they should have held unlawful, ranging from the widespread suppression of dissent in World War I, to the internment of Japanese-Americans in World War II, to the persecution of "Communists" during the Cold War.

In American Civil Liberties Union v. National Security Agency, it would have been very easy for Judge Taylor to evade her responsibility. She could have ducked the merits of the case by endorsing the government's contention that the case should be dismissed either because of the state secrets privilege or because the plaintiffs lacked standing. Many judges, I fear, would have taken that route.

ACLU v. NSA was a civil action brought by a broad range of individuals and organizations alleging that the NSA surveillance program infringes their legal and constitutional rights. The government argued that the case should be dismissed because the government would have to reveal state secrets in order to defend the legality of the program . This argument is puzzling. It is analogous to a defendant in a civil action demanding dismissal of the case because in order to prove a defense he would have to forego the attorney-client or doctor-patient privilege. But the privilege gives the defendant the right to prevent the plaintiff from demanding the privileged information. It does not give him the right to have the case dismissed. In any event, this question was not presented in ACLU v. NSA because, as Judge Taylor held, the government failed to demonstrate that any state secrets needed to be disclosed in order for it to defend the legality of the program.

The standing argument is similarly puzzling. The government maintained that the plaintiffs lacked standing to challenge the legality of the NSA program because they could not prove that they had personally been subjected to unlawful surveillance. Why couldn't they prove this? Because the government insisted that the identities of the victims of the program were a state secret. On this view of the law, no one would have standing to challenge an unconstitutional and unlawful government program so long as the government keeps secret the identities of those who are aggrieved by the program. Judge Taylor rightly rejected the standing argument in ACLU v. NSA on the basis of both logic and precedent. Sometimes, the law is not an ass.

Of course, the government will appeal Judge Taylor's decision. What will happen on appeal is anyone's guess. I will venture a partial prediction: If the appellate judges do not hide behind the vacuous standing and state secrets arguments, they will uphold Judge Taylor's ruling. On the merits, the illegality of the NSA program is too clear to elide.

Who is Judge Taylor, anyway? Knowing little about her, I decided to check her out. She is an African-American graduate of Yale Law School (JD '57). In 1964, she spent the summer ("Freedom Summer") in Mississippi to help provide legal services for civil rights activists. She arrived in Mississippi on the very day that three young civil rights workers (James Cheney, Andrew Goodman, and Michael Schwerner) disappeared in Philadelphia, Mississippi. When she and several other attorneys went to the sheriff's office to inquire about the disappearance, they were surrounded by a mob of hostile whites who hurled racial epithets at Taylor and her companions. Forty-four days later, the bodies of Cheney, Goodman, and Schwerner were found at Olen Barrage's Old Jolly Farm, six miles northeast of Philadelphia, Mississippi. Each of the civil rights workers had been shot to death. Four decades after the murders, in June 2005, Edgar Ray Killien, a local minister and member of the Klan, was finally brought to justice as one of the conspirators.

After her experience in Mississippi, Anna Diggs Taylor had a distinguished legal career in Detroit, where she served as an Assistant U.S. Attorney, special counsel to the city, and a private practioner. Among her many achievements, she won a landmark anti-discrimination case. In 1979, President Jimmy Carter appointed her a United States District Judge.

Judges are who they are. They strive to follow the law, but personal experience and character matter. I have little doubt that Judge Taylor's willingness to face the merits in ACLU v. NSA was in part the consequence of who she is as a person. Her decision took personal courage and a genuine commitment to the rule of law. The same kind of courage and commitment she manifested forty years ago during Freedom Summer. We need judges cut from such cloth.

This reminds me of an incident involving the great Judge Learned Hand in 1917. Judge Hand was then a young man, serving as a federal district court judge in New York. He was assigned to hear the case of Masses Publishing Co. v. Patten, which involved a challenge to the Espionage Act of 1917 at the very height of World War I patriotic fervor. The question was whether the United States government could lawfully ban the Masses magazine from the mails because it criticized American participation in World War I. Judge Hand fully appreciated the importance of the case to him personally. He knew he was then under consideration for promotion to the court of appeals, a promotion he richly deserved and much desired. When he learned he had been assigned the case, he wrote his wife that if the case were not quickly settled, his decision would go against the government, and then "whoop-la, your little man is in the mud." He added that "there are times when the old bunk about an independent and fearless judiciary means a good deal."

Sure enough, Judge Hand held that the government's order was unlawful, his opinion was promptly reversed by the court of appeals, and he was passed over for the court of appeals appointment, which went to a less distinguished jurist. Hand reflected later, "The case cost me something, at least at the time," but added, "I have been very happy to do what I believe was some service to temperance and sanity." Judge Hand's opinion in Masses is today regarded as one of the truly great judicial opinions in the history of the United States.

So, Judge Taylor, here's to a "fearless and independent judiciary."